State of Victoria v McKenna CaseBase | (2000) EOC 93-080 | (1999) 140 IR 256 | [1999] VSC 310 | BC9905608 VICTORIA v McKENNA; McKENNA v VICTORIA BC9905608 Unreported Judgments Vic · 277 Paragraphs SUPREME COURT OF VICTORIA CAUSES SMITH J 6257 of 1998; 6307 of 1998 10, 11, 15, 17, 21 and 22 June 1999, 27 August 1999 State of Victoria & Ors v McKenna [1999] VSC 310 Headnotes Equal Opportunity — Discrimination on grounds of sex in employment — Arumugam — sexual harassment — victimisation — compensation — causation. Tribunals — obligation to give reasons — adequacy of reasons — effect of isolated error of law — power to award costs -natural justice — functus officio. Smith J Introduction [1] In proceeding number 6257 of 1998, the State of Victoria and three police officers, Messers Mansfield, Fyffe and Arnold ("the appellants") have appealed on 54 questions of law from orders made against them by the Anti- Discrimination Tribunal on 1 June 1998 in proceedings brought by, a former police officer, Narelle McKenna, ("McKenna"). By its order, the Tribunal upheld certain complaints made by McKenna. Orders were made requiring the State of Victoria to remove certain documents from McKenna's file. The Tribunal also ordered the State of Victoria to pay McKenna the sum of $125,000 compensation. It reserved liberty to apply and ordered that there be no order as to costs. [2] By proceeding number 6307 of 1998 McKenna also commenced a cross-appeal against the State of Victoria and the above mentioned Mansfield, Fyffe and Arnold. She has appealed against the above costs order. She raises some six questions of law in her appeal. [3] Both appeals are brought pursuant to the former s150 of the Equal Opportunity Act 1995. By that section the Tribunal's order is to be treated as if it were a final order of the Magistrates' Court and s109 of the Magistrates' Court Act 1989 applies to the appeal. Thus appeals are confined to questions of law. [4] I propose to consider first the appeal challenging the Tribunals substantive findings. Personnel [5] McKenna was at all relevant times a member of the Victoria Police. In August 1993 when holding the rank of Constable, she was posted to the police station at Bairnsdale. Bairnsdale was within what is known as Q District. The Officer In Charge of Q District was Chief Superintendent Smith. The Officer in Charge of Divisional Headquarters at Bairnsdale was Superintendent Haldane. Under him and in charge of the Bairnsdale police station were Senior Sergeant Heesom who was Station Commander and Senior Sergeant Crossley who was his deputy. Sergeants at the station included Conway and Burge. The appellant Mansfield was a senior constable at Bairnsdale. McKenna remained at the Bairnsdale police station until about mid 1995. After a period of sick leave she was then posted to the police station at Warragul. She remained at the police station at Warragul until February 1997. It also was within Q District and so came under the control of Q District Headquarters at Moe and Chief Superintendent Smith. The chain of command came through the Morwell Division Headquarters where Superintendent Fyffe was in charge. The Warragul police station was under the command of Senior Sergeant Grist Page 2 of 52 State of Victoria v McKenna, [1999] VSC 310 and Acting Senior Sergeant Kelton was his deputy. Superintendent Arnold, one of the appellants, had responsibility for Moe and Traralgon police stations and was under the command of Superintendent Fyffe. History of proceedings [6] McKenna brought two complaints before the Anti-Discrimination Tribunal. The first proceeding, filed 8 March 1996, was a complaint against the State of Victoria and Mr Mansfield. It alleged discrimination on the grounds of sex and marital status against the State of Victoria and sexual harassment and discrimination on the grounds of sex against Mansfield, engaged in and by him in the course of employment by the first respondent. The matters complained of were alleged to have occurred while McKenna was stationed at the Bairnsdale police station. The second complaint, filed on 7 November 1997 alleged victimisation in the area of employment against the State of Victoria and against Fyffe and Arnold in the course of employment by the State of Victoria. The matters complained of were alleged to have occurred while McKenna was stationed at Warragul police station. [7] It appears that directions were given for the filing of particulars of complaint and particulars of defence. These underwent a number of changes. On 10 November 1997 amended consolidated particulars of complaint were filed on behalf of McKenna which brought together the complaints filed in 1996 and 1997. The present appellants filed amended particulars of defence in response to that document. [8] The hearing before the Tribunal lasted 18 days. Evidence was received from some 51 witnesses. [9] McKenna did not succeed before the Tribunal on all the claims that she made. As to the complaints concerning events at Bairnsdale police station, the following complaints were made but held not to be proved by the Tribunal: 1. Subjection of the complainant by the State of Victoria to a sexist work environment, hostile to women or unmarried women 2. Less favourable treatment of the complainant than a male employee or a person of different marital status (a) by Crossley criticizing her work performance and attitude; (b) by the State of Victoria denying her access to a four wheel drive course; (c) by the State of Victoria denying or limiting her access to a range of special duties; The Tribunal, however, held the following complaints as to events at Bairnsdale to be proved. 3. Less favourable treatment of the complainant than a male employee (a) by Haldane in April 1994 at the request of Crossley issuing her with Cautioning and Admonishment Notices; (b) by Crossley in April 1995 supplying her new home address to her former defacto partner; (c) In May 1995 (i) by Heesom making inaccurate and derogatory comments about her personal life in a report to Haldane; (ii) by Haldane in a memo to Graham endorsing inaccurate and derogatory comments made by Heesom; (iii) by Haldane making inaccurate and derogatory comments about her in a memo to Officer in Charge "Q" District. 4. Sexual harassment of the complainant by Mansfield in the week beginning 12 March 1995. [10] The Tribunal also upheld the remaining complaint made in respect of events in February 1997 at the Warragul police station. McKenna alleged that she had been victimised by the respondents Arnold and Fyffe because of the complaint she had lodged with the Tribunal in respect of what had occurred at Bairnsdale. [11] It will be noted that, as to the Bairnsdale complaint, the alleged sexual harassment occurred shortly prior to the alleged supplying of the home address and the making of derogatory comments. [12] It appears from the Tribunal's lengthy and detailed reasons that the vicarious liability of the State of Victoria was in issue. That issue was resolved in favour of the complainant, McKenna, and that decision is not challenged on the appeal of the appellants. Statutory background [13] It appears that the Equal Opportunity Act 1984 was in force until 31 December 1995 and that, from 1 January 1996, the Equal Opportunity Act 1995 was in force. As a result, the complaint lodged by McKenna in March 1996 came within the operation of s218 of the 1995 Act. This had the further result that the complaint could not be lodged Page 3 of 52 State of Victoria v McKenna, [1999] VSC 310 in respect of conduct unless it would have constituted a contravention of the 1984 Act and would also have constituted a contravention of the 1995 Act had that Act been in operation at the time of the matters in question (s218(2)). As a result the matters arising out of the incidents in Bairnsdale must satisfy provisions of both Acts. This appeared to be common ground. [14] I also note that both Acts deal with direct and indirect discrimination. McKenna, however, alleged only direct discrimination and relied on the provisions relating to that. [15] It is unnecessary to set out at length the statutory provisions which define discrimination, the tests under both the 1984 Act and the 1995 are so far as relevant essentially the same. Under the 1984 Act discrimination arose where substantially on the ground of "status" (ie "sex" or "marital status") a person was treated less favourably than a person of a different status was or would have been treated where the relevant circumstances were the same or not materially different (see s17). Discrimination in employment was unlawful where, inter alia, it was constituted by conduct subjecting the employee to "any other detriment" (see s21(2)(b)). Under the 1995 Act direct discrimination occurred if a person treated another with an "attribute" (ie "marital status" or "sex") less favourably than the person without that "attribute", or with a different attribute, was treated or would have been treated in the same or similar circumstances and the "attribute" was a substantial reason for that treatment. Again discrimination by an employer was constituted by subjecting an employee to, inter alia, "any other detriment". (s14(d)). [16] The appellants emphasised that the Tribunal, before finding discrimination, had to be satisfied that in subjecting McKenna to a detriment she had been treated less favourably than a person of the other sex or with a different marital status would have been treated by them in like circumstances. At the hearing before the Tribunal, McKenna confined her case to discrimination on the grounds of sex. Plainly, a key issue was the reason for the actions taken about which McKenna complained. [17] Sexual harassment was defined under the 1984 Act to occur where (a) the employer or a supervisor made it reasonably appear to an employee that his or her career prospects or working conditions were contingent upon his or her acceptance of "sexual advances or toleration of persistent sexual suggestions or innuendo from the employer or supervisor" or (b) knowingly permitted the employee to be "harassed with sexual advances" or "importuned or harassed with persistent sexual suggestions or innuendo" by a "fellow worker while acting in the course of their employment" (s20). The 1995 Act provided that sexual harassment occurred where there was an "unwelcome sexual advance or unwelcome request for sexual favours" or "any other unwelcome conduct of a sexual nature" (defined in s85). Thus the definition of "sexual harassment" was wider in the 1995 Act than that in the 1984 Act. The complaint to succeed, however, had to satisfy the narrower definition of the 1984 Act, the complaint having to satisfy both Acts. [18] As to the complaint of victimisation which related to events at the Warragul police station, the 1995 Act was the only relevant legislation. It defined victimisation, inter alia, as the subjection of a person to "any detriment because the person has made a complaint" or brought any other proceedings under the Act. (see s97). [19] Before turning to the specific arguments relating to the decisions in respect of each particular complaint, there are issues of general application that may be usefully considered. General issues - "open on the evidence" The appellants, from time to time in the formulation of their questions of law, challenged findings made on the basis that they were not "open" or alternatively not "reasonably open" on the evidence before the Tribunal. I was referred to a number of relevant authorities; notably Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Roads Corporation v Dacakis 1995 2 VR 508 and S v Crimes Compensation Tribunal [1998] 1 VR 50. In particular counsel for the appellants referred me to a passage in the judgment of Phillips JA in S v Crimes Compensation Tribunal (at 90) "In this area the relevant question in relation to a fact is always whether the finding (including an inference) was open, and so I think that that is the better formulation. In this connection, the word "reasonably" sometimes intrudes. It is used not infrequently in order to describe an inference of fact, not simply as "not open" but as "not reasonably open". . .; and see the discussion by Batt J in Dacakis where his Honour felt constrained to distinguish accordingly between findings and inferences. But, if I may say so, the word "reasonably" seems to be a distraction. Whether centred on a finding of fact based upon the acceptance of direct evidence or on an inference of fact based upon other facts of which there is direct evidence, the question is whether that finding or that inference was open to the Tribunal" After referring to the judgment of Mildren J in Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37 - 38, his Honour continued: Page 4 of 52 State of Victoria v McKenna, [1999] VSC 310 "In suggesting that the word "reasonably" is a distraction, I am assisted by what Mason, CJ himself said at one point in Bond. While accepting a "no evidence" test, his Honour specifically refrained from assenting to a "no sufficient evidence" test (which was said to arise out of certain English cases). Moreover, as Batt J observed in Dacakis, while the Chief Justice used language apparently importing some distinction between findings that were not "open" and inferences that were not "reasonably open", his Honour also added at 359 - 60 that that "amounts to the same thing". Indeed, it is not uncommon to find, on those occasions when the word "reasonably" appears to intrude, that it is preceded or followed by a passage in which the word is not used which again suggests it lacks any real significance. . . The word "reasonably" is used in this context, I suggest, just to emphasise that when judging what was open and what was not open below, we are speaking of rational Tribunals acting according to law not irrational ones acting arbitrarily. The danger of using the word "reasonably" lies in it being taken to suggest that a finding of fact must be overturned on an appeal which is limited to a question of law simply because that finding is regarded as "unreasonable". That is not the law as I understand it, at least in Australia. The finding of fact will be overturned on an appeal on a question of law only if that finding was not open." Counsel for the appellants adopted this analysis and I did not understand counsel for McKenna to disagree with it. [20] Counsel for the appellants, however, sought to raise another issue relying on the above authorities. In respect of most of the decisions challenged, the appellants submitted that the critical fact finding of the Tribunal had involved the drawing of inferences from facts. The appellants submitted that a question to be asked in that situation is whether there were any facts upon the basis of which an inference could be drawn. They further submitted that the facts from which any such inference could be drawn must be facts which have been found by the Tribunal or which are uncontested before the Tribunal. Counsel submitted that you cannot sustain the drawing of an inference of a secondary fact merely by pointing to evidence which was in dispute but which if it had been accepted would have formed part of the primary facts from which the inference could have been drawn. Counsel relied upon a passage cited by Phillips JA in S v Crimes Compensation Tribunal (above) from the judgment of Mildren J in Tracey Village Sports and Social Club v Walker (above at 37-8) "If there are no primary facts upon which the secondary fact could be inferred and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law. It is not sufficient that this court would have drawn a different inference from those facts. The question is whether there were facts upon which the inference might be drawn. . . . " In developing the appellants' argument, counsel submitted that the appellants did not go so far as to say that every primary fact has to be the subject of an explicit finding because many facts will be self evident or obvious. There may also be cases where the acceptance of a particular primary fact as having been found is inevitable once the inference is stated. Counsel accepted that the fact finding process is more complex and more fluid than in the analysis stated by his Honour. Counsel submitted that in the Tribunal's reasons in this case, findings involving inferences were stated but they did not inevitably lead to the conclusion that certain primary facts were found. Counsel submitted in that situation an error of law must be found because the Tribunal has not identified the primary facts upon which the inference drawn is based. Counsel submitted that where the question on appeal is whether inferences were open, it is to be determined by asking whether the inference was open on the facts which were undisputed or found by the Tribunal expressly or by implication. Counsel sought to find support for this analysis in some of the cases cited above. For example in Bond at 355 where Mason CJ said: "Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law." Also he quoted from a passage in Dacakis where Batt J stated at 517: "It is, however, authoritatively established that the question whether there is any evidence of a particular fact is a question of law, as is the question of whether a particular inference can (as opposed to whether it should) be drawn from the facts found . . ." Counsel also referred to a passage (at p518) in his Honour's reasons where his Honour stated: ". . . I consider, with a different aspect of the concept of a question of law, namely the proposition enunciated in Hope v Bathurst City Council (1980) 144 CLR 1 at 8 - 9, that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law." Page 5 of 52 State of Victoria v McKenna, [1999] VSC 310 While conceding that that passage did not deal with the particular point he was raising, nonetheless counsel placed emphasis on the "facts fully found". Counsel then referred to a passage following the above: "To my mind, the corollary of that proposition is that where there is no basis for an inference - in other words, a particular inference is not reasonably open - error of law has taken place." Reference was made to a later passage at (p520): "For the foregoing reasons, I think that I should proceed on the basis that a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will be open to challenges as being erroneous in law if it is not reasonably open on the facts." Counsel submitted that the reference to "facts" was a reference to facts which have been established either because they are not in dispute or because they have been found by the Tribunal - such facts either being found expressly or being revealed by implication from the conclusions reached on the facts by the Tribunal. [21] Finally counsel referred to S v Crimes Compensation Tribunal (above at 89) where Phillips JA said: "It cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, but ordinarily it will not be so unless it is shown that the fact finding Tribunal arrived at a finding that was simply not open to it. In so referring to a "finding" I use the term not only to include a finding of a fact derived from the acceptance of direct evidence to that effect; I include also an inference of fact drawn by the Tribunal from other facts found by it. If the finding (be it a finding on direct evidence or inference ) was not open to the Tribunal it may bespeak a relevant error of law." Counsel conceded that their Honours, in the passages relied upon, did not have to consider directly the point that he was raising; they were not dealing with the question of what inferences might be drawn on one view of conflicting evidence in circumstances where it is not possible to discern from the reasons which of those conflicting views of evidence was accepted. [22] In my view, counsel is reading too much into the passages cited above. It is significant that their Honours were not considering the precise question that he seeks to raise in these proceedings. [23] Ultimately, to establish error of law in a finding of fact, the appellants must establish that the finding of fact was not open on the evidence before the Tribunal. If all the relevant primary facts found on the evidence are identified in the reasons for judgment, the question then becomes one of whether the inference in issue drawn by the Tribunal was open on those facts. If the findings of fact relevant to the drawing of the inference are not stated in the reasons but can be established because they were admitted or because they follow as a matter of logic from the Tribunal's reasoning, the question is simply one of whether the inference in issue was open on such facts. Where it is not possible from the reasons or the record of the proceedings to reach a decision as to what competing evidence or primary facts were accepted by the Tribunal, the task for the appellants then become one of establishing that it was not open to the Tribunal to find the facts which were necessary to support the inference that was apparently drawn. In that situation, however, another issue arises - the adequacy of the reasons. General issues - adequacy of reasons [24] The appellants, in respect of each of the decisions challenged, allege an error of law by the Tribunal constituted by a failure to give adequate reasons. [25] It was common ground that a standard of perfection is not required but that the reasons must be sufficient to enable the reasoning on which the decision is based to be ascertained and to ensure that justice is seen to be done (see Bevis v Alex Gregson Roof Tiles Pty Ltd, Victorian Supreme Court, Gillard J, unreported 19 June 1997 and Pascha v Edmonds and Another Victorian Supreme Court, Smith J unreported 9 December 1998) and the authorities there collected). Counsel for McKenna relied on the statement in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272, that the tribunal reasons should receive a beneficial construction in the sense that the reasons should "not be construed minutely and finely with an eye keenly attuned to the perception of error" (quoting Pozzolanic (1993) 43 FCR 280 at 287). As the High Court (comprising Brennan CJ, Toohey, McHugh and Gummow JJ) stated: "These propositions are well settled. They recognise the reality that the reasons of an administrative decision- maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed . . . In the present Page 6 of 52 State of Victoria v McKenna, [1999] VSC 310 context, any court reviewing a decision about refugee status must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision." (at 272) The High Court also commented relevantly to these proceedings: "In other words the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities." (at 271) [26] A general issue was raised, however, by counsel for McKenna, namely, whether, in light of the relevant statutory provisions, a failure to give adequate written reasons in the circumstances in the present case was capable of amounting to an error of law. Counsel referred me to the judgment of Finkelstein J in (Comcare v Lees (1997) 151 ALR 647 at 656 and following) and the cases there cited. His Honour in that case analysed relevant authority and expressed his disagreement with certain decisions of the Full Court of the Federal Court but ultimately acknowledged he was bound by precedent to apply those authorities. His Honour's view, however, was that Brennan J had stated the law correctly in the matter of Repatriation Commission v O'Brien (1985) 155 CLR 422 where his Honour stated: " . . a failure by a Tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the Tribunal has failed in some respect to exercise its power according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law . . . An obligation to give oral or written reasons for a decision is cast on the AAT by s43(2) of the AAT Act, but the remedy for the failure to fulfil that obligation adequately is a mandatory order by the court to do so." Counsel for McKenna also relied upon the analysis of Gowans J in Wattle Glenn Estates Pty Ltd v M & M B W (1974) 40 LGRA 104. Gowans J (at 108) stated: "Even where there is a statutory obligation to state reasons and it is to be regarded as mandatory in the sense that it is enforceable by a mandamus, it does not follow that a failure to comply is to be treated as producing a result that the decision is invalidated . . . Thus, even if there has been a breach of statutory obligation in this respect, it would not be a ground for setting aside the determination of a Tribunal." His Honour went on "Since January 1973 the present provision, as set out above, has been in force [a provision obliging the Tribunal if requested to do so to 'furnish' a 'statement of reasons']. But I am satisfied that s22 (2) in its present form is intended to state the complete obligation. As that provision now stands, it could not be said that in the absence of a request there was any breach of an obligation to state reasons. If there is no request, there is no breach of any statutory obligation." My attention was also drawn to the discussion of Ormiston J in B C S P No 4164 v Stirling Properties No 2 [1984] VR 903 at 912 where his Honour considered the relative merits of dealing with a failure to state reasons, or a failure to state adequate reasons, by an order for mandamus or by an order setting aside the determination. His Honour commented about there being an air of unreality in compelling the delivery of further or better reasons where it is alleged that the reasons are partly defective because not all issues have been dealt with by the Tribunal in question. His Honour commented: "Such an order would merely give a Tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more than likely that the Tribunal overlooked the issue altogether." In the present case it seems to me that such concerns should not arise because if the Tribunal was requested to give further reasons the request would be made in circumstances where it would not be alerted to possible attacks on any unstated reasoning process. Page 7 of 52 State of Victoria v McKenna, [1999] VSC 310 [27] My attention was also drawn to the comments of Gillard J in Bevis v Alex Gregson Roof Tiles Pty Ltd (see above) where his Honour commented, in considering the obligation to give reasons, particularly to inform the losing party, ". . .it should not be overlooked that counsel does have the right to ask a judicial officer to give reasons to amplify or clarify them. Counsel should seek further reasons where appropriate. In failing to do so, an Appeal Court may draw the inference that the reasons were adequate for the legal representative to understand the decision and to be able to explain the loss to his or her client." (at 6) [28] Counsel for McKenna, in advancing his argument relied upon s139 of the Equal Opportunity Act 1995. It provides: "139 Tribunal must give reasons The Tribunal, on the request of the party to any proceedings before it, must give written reasons to that party for any order it makes in relation to those proceedings." My attention was also drawn to s150(3) of the Act which provides: "If the Tribunal's written reasons are not given at the time of making the relevant order and the party then requests the Tribunal to state its reasons in writing, the time for instituting the appeal runs from the time when the party receives the written reasons." Counsel for the appellants drew my attention to the fact that the Tribunal indicated at the conclusion of the hearing and prior to giving its reasons that it would follow its usual practice and give reasons. Counsel also referred to the case of Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 683 where Stephen J, in referring to a planning appeal where the obligation of the Tribunal to give reasons was dependent upon a request, had commented (at 683): "This effect of s22(2) may, however, no doubt be counteracted by the conduct of the Tribunal thus there may be a well established practice of the Tribunal of invariably volunteering its reasons for decision in its written determination; or else it may, in a particular determination, expressly state what were its reasons in that case. As I would understand his Honour's judgment it was upon a combination of these two phenomena that he relied for his conclusion that the Tribunal's failure to refer in its determination to the matters in contest before it signified that it had omitted to give consideration to them in arriving at its decision." Counsel submitted that in a situation where the Tribunal said it was going to give reasons then what it gives are its reasons and there is no further scope for a section like s139 to operate. Counsel submitted that his Honour's remarks in Kentucky were to the effect that where there is a practice of delivering reasons you do not have to make a request for reasons, referring to the passage where his Honour spoke of the conduct of a Tribunal counteracting with the effect of the section. Counsel submitted that where a Tribunal has a practice of delivering reasons and does so in accordance with that practice then the reasons given are to be taken as having been delivered pursuant to the statutory provision and to be the reasons of the Tribunal in the case whether or not the request for them was made. [29] Counsel for the appellants further submitted that the section has nothing to say about the overriding obligation to give reasons but deals only with the question whether written reasons must be given. Counsel drew attention also to the scope of the section which covers all decisions no matter how trivial. Counsel submitted that the common law obligation to provide reasons, would remain in those situations where reasons were needed to enable the decision to be understood. [30] Counsel for McKenna responded to these arguments by submitting that whatever underlying obligations existed, the entitlement to written reasons was to be found in s139 and where oral or written reasons are volunteered, and either party regards them as inadequate, the entitlement would remain to call upon the Tribunal to comply with s139. Counsel submitted that a failure to comply with the request would leave the Tribunal amenable to mandamus or to an appeal on a question of law. Counsel acknowledged that there would be nothing to stop the Tribunal giving reasons if it wished to do so. Counsel submitted, however, that s139 provided the only circumstance in which a party can attack the reasons on the grounds of a failure to give reasons or a lack of reasons. It was put that the judging of the adequacy of the reasons is to be applied to reasons that are given in conformity of s139. Counsel submitted that it would not be open to a party to attack oral reasons for example that were inadequate in view of the presence of s139. Before the reasons can be attacked as inadequate a request for written reasons Page 8 of 52 State of Victoria v McKenna, [1999] VSC 310 would be required. Counsel submitted further that, before a party should be allowed to attack the reasons given by a Tribunal, the party ought to exhaust all the statutory processes that are provided. [31] There does not appear to be any authority directly in point that deals with the present Act. [32] S139 of the Act, does not state that, if written reasons are provided, prior to any request, a subsequent request may not be made or if made need not be answered. In addition, s139 proceeds on an assumption that it is necessary to impose an obligation to give written reasons and that obligation is predicated on a request by a party. It would follow that the giving of a statement of reasons is not prima facie a requirement of the exercise of the decision making power under the statute (cf Dornan v Riordan (1990) 24 FCR 564 at 573). In those circumstances it would seem to me inappropriate to treat any inadequacy in any reasons offered whether oral or in writing as an error that will vitiate the decision when no party has invoked s139 and sought formal reasons by request. The statutory intention would seem to be to provide a remedy in the form of a right to request reasons in writing which request would impose an indisputable obligation on the Tribunal to give such reasons. [33] Views may differ but it seems to me that the statutory provision provides an indication that inadequacy of reasons should not be treated as a basis for vitiating any decision until a request has been made for reasons. A request will put the Tribunal on notice and any inadequacies of the reasons will have an appropriate significance. [34] In view of the lack of direct authority and the difficulty of the issue, I will, nonetheless, approach the appeals on the assumption that an inadequacy of reasons is a basis for finding error of law. General issues - Briginshaw v Bringinshaw [35] In relation to each of the decisions challenged, the appellants alleged that the Tribunal had to apply the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 - that is it should not find for the complainant unless persuaded to a reasonable degree of satisfaction having regard to the gravity of the matters alleged. Counsel for the appellants submitted that in relation to the discrimination complaints, the Tribunal failed to have regard to the principles of Briginshaw. A similar complaint is made in respect of the decision on victimisation. As to the decision on sexual harassment while it is acknowledged that reference was made to the test in Briginshaw, the argument was put that lip service only was given to that principle. [36] In addressing this question it is important to view the reasons of the Tribunal as a whole. After recounting the history of the proceedings, the Tribunal then referred to the relevant legislative provisions. It then moved on to discuss the applicable principles of law and discussed them in some detail referring to a number of authorities of the High Court and the Victorian Court of Appeal and other courts and bodies in doing so. In para3.5 the Tribunal discussed standard of proof and stated the following: "The burden of proof is on the complainant, who must prove her case on the balance of probabilities. It is well established, however, that in applying this standard of proof normally applicable in civil issues the nature of the issue may influence the degree of satisfaction of proof a Tribunal may require. In other words, the seriousness of the allegations and their consequences for a respondent with regard to (say) the professional reputation or their standing in the community, must be taken into account." The Tribunal then referred to a passage from the judgment of Dixon J in Briginshaw where he stated that "when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" (at 361). [37] The Tribunal continued paraphrasing those reasons. "His Honour then refers to the "indefinite gradations of uncertainty" that have lead to attempts to define the certainty required by the law for certain purposes but that, fortunately, in his view, have not led to the development of a third standard of persuasion. Proof of a fact must therefore be to the reasonable satisfaction of a tribunal. His Honour does not find that to be a state of mind that is reached independently of the nature and consequences of the fact to be proved." The Tribunal then quoted a passage of his Honour's reasons (at p362) : "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect references. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency." Page 9 of 52 State of Victoria v McKenna, [1999] VSC 310 The Tribunal then went on immediately to refer to the harassment allegation and the significance of Briginshaw in that context. It is reasonably clear in my mind, however, that at that point the Tribunal was plainly alive to the fact that the principles discussed in Briginshaw apply generally in all civil proceedings and to all issues. [38] In the next sections of its reasons, the Tribunal considered the vicarious liability issue generally and the issues that had to be proved in the case of the victimisation complaint. It then turned to the individual complaints and dealt with them one after the other. It set out a summary of evidence in each instance with findings and with conclusions. It is true that it is only in the discussion of the sexual harassment complaint that reference is again made expressly to Briginshaw v Briginshaw. I am not persuaded, however, that the Tribunal which on the face of it embarked upon a most thorough and detailed consideration of the cases ignored the operation of the Briginshaw principle in relation to the discrimination or victimisation claims. I am encouraged in that conclusion also by the fact that the Tribunal in finding the elements in each case established used the word "satisfaction". That is the term used by Dixon J in Briginshaw as part of his analysis of what is required. Generally, the Tribunal spoke about the complainant having "established to its satisfaction" that the elements were made out. It did not use expressions such as the "complainant has proved its case on the balance of probability" as might have been done. A different formula was used in relation to the victimisation issue - that it "finds" victimisation and the complaint proved. I am not persuaded, however, that there is any significance in that. I refer to the passages quoted above from Minister for Immigration and Ethnic Affairs v Wu Shan Liang. I am not prepared to find in absence of some other indication that an otherwise apparently competent Tribunal which has indicated at the outset of its reasons that it is alive to the proper application of the test in Briginshaw should be treated as having overlooked it simply because it does not expressly mention it. It seems to me that that is approaching the reasons with a fine tooth comb. It would require Tribunals to go to inordinate lengths to "cross t's" and "dot i's". Other evidence is required before it can be demonstrated that the Tribunal failed to apply Briginshaw. General issues - Arumugam [39] As is no doubt often the case, the Tribunal in the present matter was invited to infer the critical factual conclusions which McKenna had to establish to succeed. Counsel for the appellants submitted that in approaching the task of drawing inferences, the Tribunal had in fact taken the approach which was said to be incorrect in Department of Health v Arumugam [1988] VR 319. Counsel referred to the discussion of the Tribunal in its reasons where it dealt specifically with the question of the complaint of victimisation. In that context it referred to Arumugam's case noting that it dealt with discrimination as well. Counsel drew attention to the fact that in the initial reference to that case, the Tribunal stated that: "It is now established that an inference cannot be drawn if a more probable and innocent explanation for the detrimental conduct is available on the evidence." Counsel submitted that that is an incomplete statement of what Arumugam stands for. Counsel submitted that there is a further proposition, namely, that it is not enough for a complainant to demonstrate that the explanation given by the respondent for his or her treatment of the complainant should not be accepted. It is said that Fullagar J's reasons in Arumugam require that there be some other evidence before the Tribunal to give support to an allegation of discrimination whether on the grounds of race or sex. Counsel submitted that this aspect of the decision had been overlooked. [40] From my reading of the Tribunal's reasons, however, and, in particular, the paragraphs that follow the passage to which I have referred, it is reasonably clear that the Tribunal was well aware of the reasoning employed by Fullagar J in Arumugam's case. In particular it noted: "Fullagar J found that the Board had misdirected itself in law by finding that the mere fact that the hospital had selected a less qualified candidate indicated discrimination of some kind." It also noted that his Honour found that: "The Board, by unspoken inference, imputed a racist antagonism against the complainant by two of the interviewing panel that influenced the remainder of the Panel. His Honour found, however, that the evidence before the Board could not sustain such an inference." Later in referring to the case of Oyeknmi, the Tribunal noted that: Page 10 of 52 State of Victoria v McKenna, [1999] VSC 310 "When an innocent explanation is equally probable, an inference of discrimination on the ground of race cannot be drawn." Counsel for the appellants in fact conceded that later paragraphs indicated that the Tribunal had touched on these issues. [41] It seems to me that one must be careful not to read too much into the decision of Fullagar J in Arumugam. It is a very detailed and closely reasoned judgment. In the passages relied upon by the appellants, his Honour chose his words carefully. A particular passage relied upon by counsel for the appellants was the following (at 325): ". . . the mere fact that the appointment did not go to the man whom the Board considered to be clearly the better qualified candidate, did not of itself 'indicate discrimination of some kind', and therefore I consider that the Board in this case misdirected itself in law." (my italics [emphasis]) Another relevant passage is the following "If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can by itself provide an element of proof required. It can enable already available inferences to be drawn against dishonest explainers with greater certainty, but that is all. In the present case, the element of 'on the ground of race' was, in the absence of explanation clearly lacking, and the non acceptance of the proffered explanation could not provide the missing elements." (at 330). It has been argued that in this passage his Honour was in effect requiring "the complainant to carry the entire evidentiary burden. The absence of a legitimate reason or any reason on the employers part can only strengthen inferences already available, not provide a basis for inferring, for example, that the discrimination was based on an unlawful ground. So this does nothing about the problem of proof of direct discrimination. It is contrary to the approach taken in most other jurisdictions, and renders the Victorian provisions on direct discrimination on the ground of status (race, sex, impairment etc) close to unenforceable." (Beth Gaze, "Problems of Proof In Equal Opportunity Cases," 1989, Law Institute Journal 731 at 733). If in the last passage of Fullagar J's reasons cited above, his Honour was in fact arguing what is attributed to him by the learned author, I would with respect disagree with his Honour's analysis. It seems to me, however, that his Honour was not going that far. His Honour was postulating a situation in which a necessary element was not supported by evidence or inference and stating that in that situation absence of an explanation or rejection of an explanation could not fill the evidentiary or inferential gap. [42] Read strictly, the above propositions of Fullagar J may be accepted but it needs to be borne in mind that what his Honour relied upon principally in allowing the appeal was a conclusion that the finding of discrimination by the Board was not open because the Board had accepted that the Panel had found Dr Arumugam to be less articulate and less aggressive than Dr Doherty and that it was seen as essential that the Psychiatrist Superintendent of the hospital be dynamic and articulate (what his Honour called step (2) of the Board's reasoning). This led his Honour to state, inter alia, "It is to be observed that the Board did not state any finding that the complainant's superiority over Dr Doherty as a candidate for the job was so great, and so plainly evident, that no reasonable selection board, acting reasonably, could have arrived at the conclusion that Dr Doherty was the man for the job. . . . In the absence of such a finding it was impossible for the Board in the present case having made its finding in numbered step (2) [ie the complainant was less articulate and less aggressive], to hold that an inference of discrimination arose from numbered step (1) [that the complainant was substantially better qualified]." (at 327) A little later his Honour stated that "In my opinion, upon evidence accepted by the Board, other explanations than utter unreasonableness or actual racism, for the conclusions of the members of the Panel, were clearly more probable." (At 327) (See also P.326). What his Honour said in that case has to be read in the context of the facts of that case. His Honour saw finding number (2) as preventing a finding of racial discrimination. If his Honour's reasons are used, however, to suggest that the relevant evidence could not include the fact that the complainant was black (or in this case female), that Page 11 of 52 State of Victoria v McKenna, [1999] VSC 310 would seem to me to be going further than his Honour intended. In cases like Arumugam, or the present case, a given fact to be considered in considering all the evidence is the race or gender of the complainant which is to be compared with the race or gender of the other persons involved. Another relevant fact would be the existence of racism or sexism in the community. His Honour in fact referred to the presence in the community of the phenomenon of racism, a phenomenon that is known to affect decision making by people (at 327). That phenomenon is a matter of background fact which courts can drawn on or judicially notice (See P V Carter, "Judicial Notice: Related and Unrelated Matters" in "Well and Truly Tried", ed by Campbell and Waller, 1982). Bearing these points in mind, it might be properly argued, for example, having regard to the existence of racism in the community, that where a choice was made between two individuals, one of whom was black and one of whom was white, and the white (or the black) person was selected, a number of possible inferences arise for consideration, one of them being that race was a factor in the choice because of the existence of racism and the fact that a choice was being made between people of different races. An analysis of the full facts of the case may reveal that that inference should not be drawn. Arumugam was such a case; for while the complainant had better qualifications he was "less articulate and less aggressive" and for that reason less suitable. An innocent explanation existed and was accepted. But if, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn (cf Fullagar J in Arumugam at 330, and Anderson J, in KLK Investments Pty Ltd v Riley (1993) 10 WAR 523 at 528) even though there is no additional positive evidence to support the drawing of the inference. It seems to me that the same points may be made in relation to sexism and complaints of sexual discrimination. [43] As I have noted, counsel for the appellants argued that more evidence would be required. It is not necessary, however, to explore these issues further because there was additional evidence in the present matter. It is also unnecessary to explore further the issue whether the propositions I have advanced are contrary to what Fullagar J said in Arumugam's case. I note, however, that Fullagar J would appear to accept the proposition that a finding of racial discrimination would have been open if, on the evidence, it was open to the Board to find that no selection Board acting reasonably could have preferred Dr Doherty to Dr Arumugam (see above passage from p327). It will be seen in the analysis of the Tribunal's decision in this matter that analogous reasoning based on the extraordinary behaviour of the appellants was relied upon by it to support its findings of sexual discrimination and victimisation. [44] Counsel for the appellants also relied upon a passage in Arumugam (at 331) to argue that findings of discrimination against serving police officers who have denied the allegation should not be lightly made. I proceed on that basis. Structure of the balance of the reasons for judgment [45] I do not propose at this point to set out the complete list of questions of law relied upon by each of the parties. I propose to deal first with the appeal of the State of Victoria and Messers Mansfield, Fyffe and Arnold and to do so by reference to the particular complaints that were decided by the Tribunal in McKenna's favour and the questions of law that are said to arise in relation to each such complaint. In each case I will summarise the background facts as they emerged in the evidence before the Tribunal, the Tribunal's reasons so far as relevant and the arguments advanced on behalf of the parties to this appeal. [46] The Tribunal's reasons followed a pattern of a summary of evidence with a statement of findings from time to time and a conclusion as to the ultimate facts in issue. My attempted summaries, while at times lengthy, will not be complete, they being intended to do no more than to provide the context for the consideration of the issues. The cautioning and admonishment notices issued in April 1994 by Haldane at the request of Crossley [47] It was common ground before the Tribunal that McKenna played in a basketball team called "The Sirens", membership of which comprised policewomen, wives or partners of male police officers and people closely associated with police personnel. This team played in a basketball competition in the Bairnsdale area. McKenna was involved in an incident during a match which led to her being charged by the Basketball Association with unduly rough play and striking an opponent. It seems that the documents relating to the charges found their way to the police station and on to Sergeant Crossley's desk. He was then acting as officer in charge of the station. [48] McKenna gave evidence was she had arranged that the President of the Association would drop a summary of the charges at the police station because there were only a couple of days before the hearing of the charges. Her evidence was that she first saw the documents when she was working on the night shift that week and saw them on Crossley's desk. She said that she had searched the station for the documents which should have been delivered to the station for her during that day and that when she put the daily duty sheet on his desk she noted that she put it on top of a document from the Basketball Association that had her name on it. She said that she believed that the document was what she had been expecting and had been looking for. [49] Crossley gave evidence in substance that two female officers and one female administrative officer told him of the incident and urged him to do something to stop McKenna playing basketball. He said he was told that McKenna Page 12 of 52 State of Victoria v McKenna, [1999] VSC 310 had punched a girl in the face. He said that he rang Ainsworth, the President of the Basketball Association and arranged for him to provide a copy of the report. He said that it was this document that McKenna removed. [50] The basketball incident took place on Tuesday 1 March 1994 and the Basketball Tribunal hearing took place on 4 March 1994. The outcome of that hearing was that McKenna was cleared of the striking charge but found guilty of playing with undue roughness and suspended for four weeks. [51] During that initial week she did not have contact with Crossley. The following week she was called into Crossley's office. A conversation then occurred about which there was some conflict in their evidence. McKenna claimed that Crossley said, inter alia, that he had finally got her and was going to make sure she got into a lot of trouble. She said that Crossley said he was very distressed that she had removed the document from his desk and he described what she had done on the basketball court as shocking. McKenna also gave evidence that she had left a letter of apology in a sealed envelope on Crossley's desk when another officer, Conway, told her at the Tribunal hearing that Crossley was upset about her taking the document from the desk. Crossley disputed the suggestion that a letter of apology had been left and disputed her account of the conversation. He taped the conversation he said and made a verbatim report but did not keep the tape. [52] McKenna and Ainsworth also gave evidence on a related incident - an alleged altercation between McKenna and Ainsworth when he claimed she threatened him and she claimed she spoke of suing him for defamation because he had brought the basketball incident to Crossley's attention. [53] McKenna was charged by Crossley under police disciplinary procedures in respect of the basketball game incident and the removal of the document. Crossley recommended that she be given a cautioning notice for the former and an admonishment notice for the document matter, which notices would stay on her file for one and two years respectively. [54] The Tribunal commented that when the written statements made by Crossley, Conway and Ainsworth were put side by side with the evidence given by McKenna and Crossley, "the broad versions of the events" were the same. It suggested that the first of the "important differences" was the state of mind of the complainant when she saw and retrieved the documents from Crossley's desk. As to that, the Tribunal commented that whether or not the complainant was expecting a document to be sent to her at the station by Ainsworth, on seeing the document "she may have genuinely believed it was meant for her, particularly as Mr Ainsworth in his unsigned statement said that he had several times offered to send the document to her". The Tribunal referred to other matters that supported that conclusion - including evidence of Conway of McKenna's surprise when she learnt that the document had not been intended for her. [55] The other significant difference referred to was whether a note of apology was left. The Tribunal after commenting on the evidence and relevant considerations concluded that it found it "logical to conclude that there was, in fact, an explanatory note that was left with the return document on Mr Crossley's desk." Thus the Tribunal rejected Crossley's evidence on that issue. [56] The Tribunal then commented that there was not much variance otherwise between the versions "surrounding the basketball game and the events and conversations that followed" except that in Crossley's report to Haldane he alleged that the complainant admitted to striking, the charge for which she had been acquitted. The Tribunal commented that that admission does not appear in the taped and transcribed version of "events" (presumably the events transpiring between Crossley and McKenna). The Tribunal went on to comment that there was a considerable variance between the accounts of what happened in the basketball match by both direct and indirect evidence. It then commented: "Mr Crossley consistently accepted the worst of these versions, disregarding totally the outcome of the Tribunal hearing, even in his report to Mr Haldane . . . where he recommended that the complainant be disciplined, more than a cautioning notice, on the grounds, inter alia, that 'Her action of striking her opponent on the Basketball Court was totally unprofessional, (whether provoked or not)." Thus the Tribunal was again critical of Crossley. [57] The Tribunal commented on the inadequacy of the evidence about the basketball incident, and the conflicting evidence before the Basketball Association hearing. [58] The Tribunal accepted that there was little essential difference between the accounts as to what happened between the complainant and Ainsworth, the President of the Basketball Association, after the Basketball Tribunal hearing. In particular it accepted that she did say to him that she would sue him for defamation of character if she found out the letter he had written to Crossley had been written without reason. Page 13 of 52 State of Victoria v McKenna, [1999] VSC 310 [59] The Tribunal then referred to and appeared to accept that evidence on only three occasions between 1990 and 1996 had members of the 10,000 strong Police Force in Victoria undergone disciplinary procedures for off duty misconduct in a sporting context. None of those three incidents involved players or incidents which were part of the sporting contest. The Tribunal noted that Haldane acknowledged that no police member had ever been disciplined to his knowledge for an incident occurring in the sporting arena. The Tribunal also referred to the evidence of Senior Constable Michael Cameron that in or about July or August 1994, shortly after the basketball incident, he had been charged with striking another player during a football match while working in the Bairnsdale district for the Police Force. He pleaded guilty and was given a suspended sentence by the sporting Tribunal. He played in the team called The Lindenow Football Club which was not associated with the Police Force. The Tribunal held, however, that he was a well known member of the local community and known to be a member of the police. He gave evidence that the matter was never taken up by his superior officers. Crossley in his evidence said he knew nothing of this incident. Amongst other things, he apparently acknowledged, in cross-examination, that if the Cameron incident had been a matter of concern in the local community then he would have heard about it in all probability. [60] The Tribunal then expressed its opinion about Crossley's action in recommending severe disciplinary action to Mr Haldane. It described it as "highly surprising to say the least" that Crossley should have made that recommendation on the grounds that he did of • a striking charge that had been dismissed by the Basketball Tribunal; • her action in removing sensitive documentation from his desk when there was consistently, from the beginning, an alternative innocent explanation; • the complainant "lying to cover up the situation of the removal of the documents . . . " when the complainant had consistently from the outset maintained that the removal was an innocent mistake; • "veiled threats against the secretary of the Basketball Association in threatening to sue him", an action which the Tribunal correctly identified was not unlawful. [61] Turning to Haldane the Tribunal referred to his evidence that he had formed the view that the contents of Crossley's report were accurate and he acted on it accordingly. It noted that he did not speak to the complainant before issuing the notice but spoke to Crossley and a number of women who were involved in the basketball team. His evidence was that he spoke to the complainant at the time he served the notice. He denied that the complainant's sexual or marital status was of any relevance when he issued or served the notices. He told the Tribunal that he had formed the view reading Ainsworth's deposition that the complainant had not requested the document be sent to the station. He expressed his view that the essence of the discipline notice was the fact that the basketball team was a police team and was recognised by the local community as such. His view, he said, was that the consequences of undesirable behaviour on the local level were "potentially disastrous". Asked how he reacted to the suggestion that the imposition of a police disciplinary measure on someone for a sporting event off duty was unheard of, he commented that that was a "simplistic notion" He said it might be unheard of but that the discipline notice had to be viewed in the broadest context. He said the team was a police team in a country town closely linked to the police department and that all the police team were on display for the whole community to see. The Tribunal did not then state expressly whether it accepted Mr Haldane's explanation or not but dealt with it later. [62] The Tribunal went on in its reasons to refer to the evidence of Walsh, from the Police Association. In particular in relation to the document incident his evidence in substance was that the highest response that he would expect to be taken would be to sit the person down, explain the inappropriateness of what occurred and to indicate that it would not be tolerated in the future but then for everyone to get on with their work. Immediately following that reference to his evidence the Tribunal stated the following: "The Tribunal finds that the complainant has established to its satisfaction that her treatment by Mr Haldane at the request of Mr Crossley with regard to the issuing of the cautioning notice and the admonishment notice constituted very serious discrimination against her on the basis of her sex in the area of her employment. In that regard the Tribunal were satisfied that the complainant received less favourable treatment than would have been accorded to a person of different sex and that the treatment was on the grounds of the difference. The Tribunal is satisfied that a person of a different status, ie a male, would not have been treated in the same way." It should be noted that the Tribunal held that the conduct constituted "very serious discrimination". The Tribunal then stated: "The Tribunal observed that it is wholly unconvinced by the reasons put forward by Mr Crossley and others in Q Page 14 of 52 State of Victoria v McKenna, [1999] VSC 310 District for the severe disciplining of the complainant over what should have amounted to an every day occurrence in the sporting arena. The experience in the force and the results of the search conducted by Mr Nancarrow - no person in the force had to anyones recollection, and as evidenced by the search of police files since 1990, been formally disciplined over such an incident as a competitor in a sporting event - strongly support the complainant's contention that she had been singled out for extraordinary, and for what turned out to be unprecedented punishment over a matter that should have been left to the appropriate sporting Tribunal." [63] Thus the Tribunal rejected the explanations proffered by Crossley and Haldane and found that she had been "singled out" for "unprecedented punishment" when there should have been none. [64] For the appellants it was submitted that the question to be considered first by the Tribunal was what was the state of mind of the person or persons within station command at Bairnsdale responsible for the treatment in question. Secondly, the hypothetical question had to be considered of how those persons in station command would have treated another police officer in the same or similar circumstances. It was submitted that there was no direct evidence either that McKenna was treated in the way that she was because of her sex or marital status or that a male, or a married female, would have been treated any differently in the same circumstances. The point was made that there was direct evidence from Crossley and Haldane, in particular, that the treatment that McKenna received was not because of her sex or marital status and that a male or married female would have been treated no differently in the same circumstances. It was put that the question for the Tribunal was whether such indirect evidence as was available was sufficient to prove by means of inference that the respondent's treatment was because of her sex or marital status and that a male person or a married female would have been treated differently in the same or similar circumstances. It was put that the circumstances were so exceptional that a comparison was not possible. [65] Counsel for the appellants submitted that the evidence set out what, on the face of it, were the reasons for the actions recommended by Crossley and taken by Haldane. There was nothing in the documentation, in particular, to suggest that there was any connection to the respondent's sex or marital status which explained the action taken. Counsel submitted that the only evidence tendered on behalf of McKenna said to bear upon the critical question whether a male member would have been treated differently was the evidence concerning the male, Cameron, an officer stationed at Bairnsdale,. It was submitted that he was in a different situation because he was not playing in a police team, neither Crossley nor Haldane had any knowledge of the event and the events happened after the events of March or April 1994. It was put that at the most the Tribunal examined the reasonableness of Crossley's action. Counsel was critical of the Tribunal's handling of Haldane's evidence on the basis that there was no analysis of why, consistent with his evidence, it could or did conclude that sex was the basis upon which Haldane acted nor did it indicate why it rejected Haldane's evidence. Counsel submitted that there was no evidence from which the proscribed reasons for treatment of McKenna could be inferred either against Crossley or Haldane. Further the Tribunal provided no explanation as to why it did not believe Haldane's explanation and did not deal expressly with Haldane's position in relation to the admonishment notice for removing the document from Crossley's desk. [66] The above criticisms advanced by Counsel for the appellants give rise to some ten alleged questions of law. Those directed to the lack of evidence and use of evidence are the following: "1. Whether the finding by the Tribunal that the respondent's sex was the basis or the ground upon which S/Sgt Crossley recommended that disciplinary action be taken against her was open, alternatively reasonably open, on the evidence. 2. Whether the finding by the Tribunal that, in circumstances which were the same, not materially different or similar, S/Sgt Crossley would not have made the same recommendation in relation to a male member of the Force under his command was open, alternatively reasonably open, on the evidence. 3. Whether, in its assessment of the way in which a male member of the Force would have been treated in relation to matters which led to the issue of the cautioning notice, the Tribunal took account of, and was influenced by, irrelevant considerations, such as (a) the rarity of the disciplining of members of the Force for off-field conduct in a sporting context; (b) the fact that no member of the Force (male or female) had been disciplined for conduct that occurred in the sporting arena; (c) the fact that S/C Cameron was not disciplined for conduct which: (i) occurred subsequently to the events involving the respondent, (ii) did not come to the attention of S/Sgt Crossley or Supt Haldane, and Page 15 of 52 State of Victoria v McKenna, [1999] VSC 310 (iii) did not occur while the perpetrator was part of a Police team. 4. Whether the Tribunal was entitled as a matter of law to proceed to find that the respondent's treatment by Supt Haldane constituted discrimination against her on the basis of her sex notwithstanding that the Tribunal did not consider or make findings upon a. the basis or the ground upon which Supt Haldane issued the Cautioning and Admonishment Notices, and b. the question whether Supt Haldane would have treated a male member of the Force more favourably in circumstances which were the same, not materially different or similar. 5. Alternatively, if there were findings of the kind referred to in the previous question, whether those findings were open, alternatively reasonably open, on the evidence before the Tribunal. The appellants relied upon the Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 - 60 and Roads Corporation v Dacakis [1995] 2 VR 508, 517 to argue that the findings of the Tribunal came within the category of case where there was no evidence upon which the inferences drawn by the Tribunal could reasonably have been based. [67] Counsel for McKenna submitted in relation to questions 1 and 2 that the appellants must show that there was no evidence on which the Tribunal could have reached the conclusion that the respondent's sex was the basis on which the disciplinary action was taken. It was contended that there was such evidence. Counsel referred, firstly, to a finding made by the Tribunal in dealing with an earlier complaint that was dismissed. Notwithstanding that dismissal the Tribunal had noted: "Nevertheless there was evidence throughout of attitudes and behaviour towards women, even at senior levels, that would lead it to the view that the work environment in Bairnsdale was likely to give rise to incidents of the kinds complained of (29). Secondly counsel referred to evidence given by Walsh in cross-examination where he noted that: "In the total context of what was going on and even up to now, as the Secretary of the [Police] Association, I haven't had a situation in seven years that has been similar where you have three isolated complaints (that is three complainants) about the same work place of either gender based or other discrimination. It was something that struck. It was just too much of a coincidence, the three of them." Counsel then referred to the evidence of Walsh, referred to in the reasons of the Tribunal, where he spoke of what would be a reasonable response to the taking of the document from Crossley's desk. He referred also to the Tribunal's observation that it was wholly unconvinced by the reasons put forward by Crossley and others in Q District for the severe disciplining of the complainant over what was an everyday concurrence in the sporting arena. Counsel also referred to the evidence of Chief Superintendent Ladiges when, as Acting Chief Superintendent, he received a request to investigate an equal opportunity complaint. He commented on Sergeant Burge telling him some months after the alleged incident of Sergeant Mansfield pulling McKenna on to his lap that he described it as "it was no big deal". Further, counsel referred to the evidence of the witness described as witness A (noted by the Tribunal at p24) that Crossley described a gathering of female police officers as "a mothers' club". Counsel also relied upon the evidence of the unique treatment of McKenna in view of the history of the lack of disciplinary action in the Police Force and relied upon the comparison with Cameron. Counsel submitted that in light of the evidence of the sexist atmosphere and treatment at Bairnsdale and in light of the extraordinary treatment of McKenna for her alleged wrong doing, it was open to the Tribunal to find that the respondent's sex was the basis upon which the disciplinary action was taken. The explanation for their action was that they were appalled by female aggression, a reaction they would not have had to male aggression in similar circumstances. [68] Counsel for the appellants sought to distinguish the evidence relating to Cameron on the basis that it was not comparable. It is true that it was not comparable in all respects but, nonetheless, it provided an example of the way an act of admitted violence of the kind for which McKenna was found not guilty by the Sporting Tribunal, was handled at about the same time within the Police Force at Bairnsdale, an act that would have been known to other members of the force. Counsel also suggested other interpretations of the evidence relied on by McKenna and pointed to denials and contradictory evidence by Crossley. [69] In my view it is not necessary to consider the additional evidence in detail. The finding was plainly open to the Tribunal on the evidence. There was evidence, which the Tribunal had accepted, of the existence of sexist attitudes and behaviour towards women at a senior level which was affecting the working environment in Bairnsdale. It was Page 16 of 52 State of Victoria v McKenna, [1999] VSC 310 clearly open to the Tribunal to find Crossley and Haldane had reacted in an extreme, irrational and unjustifiable fashion in dealing with the alleged misdeeds of McKenna. It was open to the Tribunal to reject, as it did, the explanations offered by them both. It was open to the Tribunal to draw upon the evidence of the comparison between McKenna's treatment and that of other police officers, including Cameron, a male officer. In the end, the reaction of Crossley and Haldane could only be explained as a reaction to aggressive behaviour by a woman which carried over into their treatment of her in relation to the document and other matters relied on by them. [70] One should not overlook the fact that the Tribunal had the benefit of observing McKenna and Crossley and Haldane and the other witnesses and that that experience would have been of value in any assessment of the quality of the environment in which the incidents took place and the personality and likely attitudes of the key figures. Further the expertise possessed by to a Tribunal like the Anti Discrimination Tribunal warrants a degree of caution before concluding that the Tribunal's decision was not open (see Stephen, J's Spurling v Development Underwriting Vic Pty Ltd 1973 VR 1 at 11 and Wattle Glen Estates Pty Ltd v Melbourne and Metropolitan Board of Works and Others (above) 111. [71] On the question of whether there was evidence to support the decision, I note that counsel for McKenna did not rely upon the findings of the Tribunal, set out later in its reasons about whether the State of Victoria and the Victoria Police had taken reasonable precautions to prevent discrimination on the basis of sex. In those reasons it is clear that the Tribunal was strongly of the view that both had failed to do anything effective to alter a male dominated culture in the organisation. It seems to me that such a factual situation would be another matter relevant to the determination of the question of whether a particular decision that was made was made because of the sex of the person involved and whether a male would have been treated differently. The issue was not raised by counsel for McKenna and was not debated by counsel for the appellants. Accordingly I have not relied upon that matter in reaching my decision. [72] In relation to the third question of law quoted above, counsel for McKenna submitted that the items of evidence referred to were highly relevant because of the uniqueness of the respondent's treatment was a factor which was relevant to whether an inference could be drawn of discrimination on the basis of sex. I agree with that submission. I note that its relevance is supported by Fullagar, J's reasons in Arumugam (above, at 327). I have not explored the question whether and to what extent objection was taken to the admission of that evidence before the Tribunal. [73] As to question 4, I accept the submission of counsel for McKenna that the Tribunal in fact did make the finding as to the basis upon which Haldane issued the Cautioning and Admonishment Notices - it identified and rejected his reasons and found a discriminatory basis. It was also implicit in its decision that it found that Haldane would have treated a male member of the Force more favourably in the same or similar circumstances. [74] As to question 5, the alternative question, I agree with counsel for McKenna that, for the reasons already advanced, the findings made were open. [75] I turn then to question 6. It provided: "6. In relation to the matter which led to the issue of the admonishment notice, whether the Tribunal failed to take account of the stated ground or basis upon which that notice was given by Supt Haldane, and relied upon irrelevant evidence, namely, the evidence of the Secretary of the Police Association as to the appropriate disciplinary response in the circumstances." [76] As I have already stated, in my view the Tribunal did consider Haldane's reasons but rejected them. Turning to the other issue, counsel for McKenna submitted that the evidence was relevant and he submitted that if the conduct complained of was outside the scope of any normal course of action then that enabled an inference of discrimination to be drawn. I assume that by that it is not meant that discrimination on the basis of sex was an inference that was open simply that discrimination of some kind arose. In my view this is correct and, therefore, it was relevant as a step in the process of reasoning towards a finding of discrimination on the grounds of sex. I note that it was also open to the Tribunal to find that Crossley and Haldane had lied in their explanations and that the reason for that was that to tell the truth would reveal their discriminatory reasons. The Tribunal, however, did not make that finding expressly and the argument was not relied upon by McKenna. [77] It is then necessary to consider the next question of law alleged to arise and that is the sufficiency of the reasons given by the Tribunal. "7. Whether, in relation to its ultimate findings as to the ground or basis upon which S/Sgt Crossley made his recommendations to Supt Haldane and Supt Haldane issued the cautioning and the admonishment notices to the respondent, the Tribunal - a. failed to provide adequate reasons for those ultimate findings, b. failed to make adequate findings of the facts upon which those ultimate findings were based, Page 17 of 52 State of Victoria v McKenna, [1999] VSC 310 c. failed to disclose the basis for the drawing of any inferences involved in those ultimate findings, or d. failed to expose the reasoning process which led to those ultimate findings." [78] Counsel for the appellants submitted that it was a question of law whether the Tribunal had satisfied its obligation to give reasons and that in this instance it failed to do so. Counsel submitted that the obligation on the Tribunal was to state reasons which adequately disclosed why it reached its decision and to base those reasons upon findings of fact which were clearly stated and examinable. Counsel referred to Pettit v Dunkley [1971] 1 NSWLR 376 and Stojkovski v Fitzgerald [1989] WAR and Sun Aliance v Massoud (1988) VR8. [79] Counsel for McKenna relied firstly on the argument noted above that the Tribunal was under no obligation to give written reasons and that therefore the question of inadequacy did not arise. In the alternative, it was put for McKenna that, if the obligation did arise, it had been satisfied. Counsel submitted that, while the reasons might not be as detailed as some might like, sufficient appeared to establish the correctness of the approach and the conclusion. Counsel submitted that the reasoning behind the Tribunal's decision was reasonably clear. [80] I was initially troubled by the first impression given by the reasons which was that the Tribunal had set out a summary of the evidence with some factual findings and then stated its conclusion without giving complete expression to the reasoning process that it had employed to move from its consideration of the evidence to its conclusion. On closer examination, however, I am satisfied that the reasoning process of the Tribunal was reasonably obvious. It had found that there was a sexist environment in the Bairnsdale police station and that Crossley and Haldane had behaved in a most extraordinary fashion in dealing with what were extremely minor incidents. Further, on the findings of the Tribunal, it is clear that it was of the view that Crossley had acted in an extreme and irrational fashion in his handling of the situation. Crossley always accepted the worse of the versions of events and rejected her explanations out of hand. Haldane appeared to do the same in that he acted upon Crossley's conclusions and did not himself attempt to form his own view as to the circumstances. They both effectively presumed guilt. There was no attempt by either of them to give her a fair hearing. Further the Tribunal rejected the reasons advanced by Crossley and Haldane. It is clear to me that the Tribunal took the view that the explanation for their overall extreme behaviour lay in their reaction to aggressive behaviour on the sporting field by a woman. This was why Crossley and Haldane over reacted in the way they did. The Tribunal's conclusion that there had been "very severe discrimination . . on the basis of . . . sex" was not only open but correct, in my view. [81] In reality the Tribunal accepted the conclusion submitted by counsel for McKenna (see Bevis v Ellis Gregson Roof Tiles Pty Ltd, above, at (5). He submitted that senior officers like Crossley were not prepared to accept behaviour of this kind from a woman officer but regarded it as a matter of no concern in a male officer. As counsel put it in other areas considered, McKenna did not "fit into the mould". He submitted that Crossley, in particular, regarded the behaviour as unladylike and from then on it was "all guns out". [82] It might be said that the Tribunal might have stated the above reasoning or that it had accepted counsel's analysis. It must be borne in mind, however, that the Tribunal was an expert Tribunal and Tribunals with expertise on occasions do not state what is to them obvious. Counsel for the appellants sought to question the expertise of the person presiding, Mr Wolters, on the basis that he had not long been at the Tribunal and prior to that had had experience in government and other organisations. There was no evidence before me as to those matters. Accepting, however, that he had had little experience on the Tribunal, nonetheless, he was one of three members and it would be proper to approach the decision of the Tribunal on the basis that the members brought a collective experience and expertise to their decision in the matter. [83] A reading of the reasons indicates that the Tribunal engaged in an extremely thorough statement of the principles applicable and the evidence it received. It is reasonable to assume from its conclusion that it regarded the case as a very clear one and that further elaboration of the material was unnecessary. In particular it was entitled to assume that the precise way in which the sexist attitudes had played a role in the situation did not have to be spelt out. I leave aside the question of whether it was open to the Tribunal to go outside the evidence (see Waters v Public Transport Corporation (1991) 173 CLR 349 at 390). [84] I turn to the next question, question 8. "8. Whether the Tribunal purported to determine the matter by reference to considerations outside the Equal Opportunity Act 1984 and the Equal Opportunity Act 1995 by treating matters of reasonableness and proportionality in Police discipline as determinative (or effectively so) of the questions whether the respondent was disciplined on the basis or ground of her sex and whether she was treated less favourably than a male would have been treated in circumstances which were the same, not materially different or similar." Counsel for the appellants argued that in essence the Tribunal had considered whether the conduct of the police officers in disciplining McKenna was reasonable and proportional and that having concluded that it was not it then, as it were, leaped to the conclusion that what had occurred was sexual discrimination. As I have already indicated, I Page 18 of 52 State of Victoria v McKenna, [1999] VSC 310 am satisfied that there were other matters of which there was evidence which entitled the Tribunal to conclude that not only was there discrimination but it was discrimination with a sexual basis. I am satisfied in any event that the Tribunal while placing considerable emphasis on the extreme unreasonableness and disproportion of the actions of the police officers did not rely upon that "as determinative" of its decision. [85] I turn to question 9. "9. Whether the Tribunal implicitly imposed upon the appellants an onus of proof to establish to the Tribunal's satisfaction that the respondent's sex had not been the basis or ground upon which disciplinary action was taken against her and that a male member of the Force would not have been treated any more favourably in circumstances which were the same, not materially different or similar." The appellants argued that the approach of the Tribunal suggests that it was assuming that the appellants bore the onus of proof and not McKenna. Counsel submitted that the only explanation for the result was that it put the onus on the present appellants to disprove a case of discrimination. I am satisfied, however, that this argument cannot be made out. There is nothing in the language of the reasons to support the conclusion, a matter acknowledged by the question which refers to an implicit imposition of the onus of proof. The facts found by the Tribunal and the evidence available to the Tribunal plainly provided a basis for finding a prima facie case of sexual discrimination. If an onus of proof was imposed upon the present appellants it was an evidentiary onus and it is clear from the Tribunal's reasons that they failed to discharge that onus because it rejected the explanations. It is clear from the reasons that at all times the Tribunal proceeded on the basis that the ultimate onus lay with McKenna. [86] The remaining question is question 10 which raised the Briginshaw point. I have addressed that issue above. [87] In light of the above I am satisfied that no error of law has been shown in respect of the complaint concerning the basketball and document incidents. [88] In conclusion, I note that the Tribunal having reached the conclusions that it did in respect of this complaint had found further evidence of a sexist environment and an example linking that sexist environment to sexual discrimination against McKenna. It also had found that Crossley was the prime instigator in that discrimination. The supply of McKenna's home address to former defacto partner [89] It was common ground before the Tribunal that while McKenna was stationed at Bairnsdale she lived for a period of time in a de-facto relationship with Simon Cannington. The relationship became unsatisfactory and they separated. There were problems about access to the house which they had shared and on one occasion McKenna left a threatening message on Cannington's answering machine, a message that was played to the Tribunal. In June 1995 Cannington decided to seek an intervention order. He asked Senior Sergeant Crossley to provide him with the private address of McKenna. At this time McKenna had moved to Melbourne. [90] The Tribunal referred to the evidence given by McKenna, Crossley, Cannington and Haldane. Crossley gave evidence that he gave the address to Cannington because "he needed it, obviously for the service of the intervention order itself and it was best that he, himself, take that intervention order out, because he's the one that knows all the full and true circumstances of all the threats that he has had and physical abuse he has had." [91] He said that he had heard the tape which contained a threat to kill Cannington and was "flabbergasted" because it involved a member of the Police Force. Asked about the police protocol about giving out the private addresses of members of the Police Force. He described it as only "a practice, I suppose". He gave evidence that he would do the same if a male member's wife came asking him for the member's address. [92] It seemed that there were some divergences between the evidence of Cannington and Crossley and the Tribunal noted that it preferred Crossley's evidence where the evidence diverged. The Tribunal held that it was satisfied that Crossley made the private address of McKenna available to Cannington to enable the complaint and summons for an intervention order to be completed and served. [93] The Tribunal referred to the evidence of Haldane in which he denied that he knew that Crossley had given the private address of McKenna to Cannington and said that he only became aware of the matter as a result of the proceedings brought by McKenna. He said that, to his knowledge, no step had been taken against Crossley in respect of the breach of police policy. He said that, in the absence of an explanation, he would put that sort of conduct on the same par as the taking of a document from Crossley's desk. [94] The Tribunal also referred to the evidence of Walsh that it was instilled in the most junior of constables when they came into the force that the members' private telephone numbers and addresses were not to be given out without their permission. He said "you just don't do it". After referring further to Walsh's evidence about handling requests for contact with members of the Police Force, the Tribunal concluded saying: "The Tribunal finds that the complainant has established to its satisfaction that Mr Crossley, in supplying details of Page 19 of 52 State of Victoria v McKenna, [1999] VSC 310 the complainant's private address to a person outside the Police Force discriminated against her on the basis of her sex in the area of employment. In that regard the Tribunal is satisfied the complainant received less favourable treatment than would have been accorded to a person of a different sex and that the treatment was on the grounds of the difference. The Tribunal is satisfied that a person with a different status, ie a male, would not have been treated in the same way." [95] Counsel for the appellants submitted that even accepting that the provision of the address by Crossley was irregular there was nothing in the evidence to suggest that it had anything to do with the sex of McKenna. Counsel referred to the fact that Crossley denied that sex or marital status had anything to do with his decision and submitted that the Tribunal provided no reason for rejection of the denial. It was put that there was no evidence such as would suggest a link between Crossley's action and the respondent's sex and, therefore, the finding was not reasonably open to the Tribunal. [96] The criticisms of the approach of the Tribunal give rise to nine questions. Those which challenge the evidentiary basis of the decision are the following: "11. Whether the finding by the Tribunal that the respondent's sex was the basis or the ground upon which S/Sgt Crossley supplied her home address to her former de facto partner was open, alternatively reasonably open, on the evidence. 12. Whether the finding by the Tribunal that, in circumstances which were the same, not materially different or similar, S/Sgt Crossley would not have supplied the address of a male member of the Force under his command was open, alternatively reasonably open on the evidence. 13. Whether the Tribunal failed to address (other than nominally) the questions which it was required to address, namely, whether the respondent's sex was the basis or the ground upon which S/Sgt Crossley supplied her address to her former de facto partner and whether, in circumstances which were the same, not materially different or similar, S/Sgt Crossley would have supplied the address of a male member of the Force under his command." Counsel for McKenna submitted that there was ample evidence, to be found in the matters referred to above which pointed to a sexist culture in Bairnsdale. Counsel pointed to the extraordinary conduct of Crossley over the basketball and document incidents as another matter that could be taken into account by the Tribunal in inferring that an act of discrimination based on sex had occurred. [97] Views may differ on this matter but it seems to me that it cannot be demonstrated that it was not open to the Tribunal to reach the decision that it did. It must be borne in mind that the Tribunal had decided the complaint concerning the basketball incident and the document adversely to Crossley and in doing so had come to certain conclusions about Crossley's attitude. Again Crossley had behaved in an extraordinary way, breaching fundamental policy and practice. The reasons he advanced would justify the provision of the address of a male officer where sought by his female partner. It seems, however, that an address would never be supplied in those circumstances. These reasons could not sensibly justify his actions in this instance. Here again it was open to the Tribunal to conclude that Crossley was reacting again in a sexist manner to aggression on the part of a woman. [98] I turn to a related question, question 16 16. Whether it was open to the Tribunal to reject the sworn evidence of S/Sgt Crossley with respect to the basis or the ground upon which he supplied the respondent's address to her former de facto partner and with respect to the question whether he would have done so in the case of a male member if the circumstances were the same, not materially different or similar (as it implicitly did), notwithstanding that - a. the Tribunal accepted his evidence, in preference to contradictory evidence given by the former de facto partner himself on a closely related matter, and b. there was no direct or circumstantial evidence to support such a course, and c. the Tribunal's reasons disclosed no basis for rejecting that evidence." The Tribunal accepted that the information was given to enable Cannington to serve a complaint and summons for an intervention order. I proceed on the basis that, otherwise, it rejected the explanations and justifications offered. In my view it was plainly open to the Tribunal to reject, to the extent that it did, the evidence of Sergeant Crossley referred to notwithstanding the matters listed. In particular, the fact that the Tribunal preferred his evidence to Cannington does not mean that it accepted all his evidence. I have already indicated that there was circumstantial evidence to support the Tribunal's decision. As to whether the reasons disclosed a basis for rejecting the evidence, in my view they did but I will refer to that issue in dealing with the next question, question 14. Page 20 of 52 State of Victoria v McKenna, [1999] VSC 310 "14. Whether, in relation to its ultimate findings as to the ground or basis upon which S/Sgt Crossley supplied the respondent's address to her former de facto partner, the Tribunal - a. failed to provide adequate reasons for those ultimate findings, b. failed to make adequate findings of the facts upon which those ultimate findings were based, c. failed to disclose the basis for the drawing of any inferences involved in those ultimate findings, or d. failed to expose the reasoning process which led to those ultimate findings." Counsel for the appellants submitted that the Tribunal provided no analysis of how its conclusion was arrived at consistent with the evidence and with its finding that Crossley provided the address to enable a complaint and summons for an intervention order to be completed and served. [99] Again counsel for McKenna relied upon the argument relating to the obligation to give reasons referred to above. In the alternative, it was put that sufficient appeared from the reasons. In particular, the Tribunal had found an environment in which incidents of a sexist nature are likely to occur. It had already found that Crossley had behaved in an extraordinary and discriminatory fashion towards McKenna. It had found in this instance that there had been extraordinary behaviour again directed towards McKenna by Crossley himself. [100] Again the complete reasoning process is not set out but it is clear that the Tribunal was of the view that the explanation for Crossley's action lay in the sex of McKenna. Crossley was again reacting in a discriminatory way over the aggression of a woman. Again the situation was one where the circumstances were reasonably clear and did not require explanation from the Tribunal. [101] I turn next to a question directed to the reasoning processes employed by the Tribunal, question 15. "15. Whether the Tribunal purported to determine the matter by reference to considerations outside the Equal Opportunity Act 1984 and the Equal Opportunity Act 1995 by treating the question whether S/Sgt Crossley had breached Force policy in supplying the respondent's address to her former de facto partner as determinative of the questions whether the address was supplied on the basis or ground of the respondent's sex and whether the respondent was treated less favourably than a male would have been treated in circumstances which were the same, not materially different or similar." [102] Counsel for McKenna noted that no objection was taken to the evidence relating to Police Force policy from Walsh or Haldane. Counsel submitted that it was relevant to make the comparison between the treatment of Crossley's egregious conduct by the Police Force and the treatment of McKenna in relation to the Cautioning and Admonishment notices. Counsel submitted that the matters were clearly relevant and not outside the Equal Opportunity Act 1995. [103] I accept these submissions. In addition, I accept that the Tribunal did not treat "as determinative" the question of breach of Police Force policy. [104] The next question also concerns the Tribunal reasoning processes, question 17. "17. Whether the Tribunal implicitly imposed upon the appellants an onus of proof to establish to the Tribunal's satisfaction that the respondent's sex had not been the basis or ground upon which S/Sgt Crossley supplied her address to her former de facto partner and that a male member of the Force would not have been treated any more favourably in circumstances which were the same, not materially different or similar." [105] In my view the criticism involved in this question cannot be made out. It would be necessary to demonstrate that there was no evidence before it could be said that the burden of proof had been shifted to the appellants. [106] I have dealt with question 18, the Briginshaw question. I turn then to the final question of law raised in relation to the decision on this complaint, question 19 "19. In the light of the submission by counsel for the respondent that the supply of the respondent's address to her former de facto partner did not amount to an act of discrimination in the primary sense, whether the finding by the Tribunal that S/Sgt Crossley had discriminated against her on the ground or basis of her sex - a. constituted a denial of natural justice to the appellants, or b. was in other respects open to the Tribunal as a matter of law." [107] The question arises because counsel for McKenna in his final address to the Tribunal said that he accepted that Crossley's actions did not constitute discrimination in a "primary sense" Counsel for the appellants submitted that counsel was, therefore, saying that these events were being relied upon as background only in support of the other occasions which were discrimination in a "primary sense". Page 21 of 52 State of Victoria v McKenna, [1999] VSC 310 [108] Counsel for McKenna submitted that the question proceeds on a false assumption as to what was meant by the submission that the discrimination was not discrimination in a "primary sense". Counsel submitted that a fair reading of the transcript leads to the conclusion that what was being put by counsel for McKenna before the Tribunal was that the discrimination was part and parcel of the environment or "animus" within which McKenna was working in Bairnsdale. It flowed from the views held about the proper role for female officers and about McKenna not fitting the accepted mould. In reply, counsel for the appellants submitted that counsel below, in making the concession had abandoned the complaint. Counsel for McKenna submitted that it was clear from the transcript that it had not been abandoned. At no point did counsel ever indicate that the complaint was abandoned. Rather, the complaint was pressed as a complaint of discrimination under the Act. Finally counsel made the point that the terms "primary sense" or "primary discrimination" were not terms recognised under either statute. [109] I accept the explanation and analysis of counsel for McKenna. In particular, a fair reading of the transcript suggests to me that at no time did counsel for the present appellants assume that there had been any abandonment. In fact, counsel for the appellants put submissions to the Tribunal going to the merits of the issue and, inter alia, that the conduct revealed hostility against McKenna at worst and not discrimination. Further, there was no denial of natural justice to the appellants. Counsel for the appellants conceded that it was difficult to argue a denial of natural justice. Changing direction, counsel submitted that the "primary sense" comment of counsel below was supportive of the submission that the findings were not open. In my view the opposite was the case. [110] For the foregoing reason the appellants' challenge to the Tribunal's decision on this discrimination complaint fails. The memorandum from Senior Sergeant Heesom and Superintendent Haldane [111] McKenna applied for a transfer from Bairnsdale to a station in the Knox area - district F. Her application was put on the grounds of pressing necessity. As noted by the Tribunal in its reasons, the circumstances giving rise to this application included the alleged sexual harassment incidents to which I will refer and the difficulties she was experiencing at Bairnsdale. [112] After breaking down on a visit to a naturopath, she saw Senior Constable Lisa Thorne at the Police Welfare Branch. Thorne recommended that McKenna see Doctor Mark Lawry, the Police Medical Officer. On 2 May 1995 she saw him and he authorised her to take time off work. Thorne also advised McKenna, having been told about the problems at Bairnsdale, that she should support her application for a transfer with a report based on the problems she was having in her personal life rather than her work problems. This she did in a letter to the Officer in Charge of F District which was dated 3 May 1995. Her application for a transfer was refused. When she appealed against that refusal she found the following in her personal file (a) Sergeant Heesom had written a memorandum of 5 May 1995 to Haldane saying amongst other things that he thought her report of the 3rd May was "inaccurate and misleading and calculated to obtain a transfer by devious means" (b) Haldane in a note on fax cover sheet dated May (presumably 1995) to Chief Superintendent Graham of F District said that he would not support a temporary transfer of complainant "in the light of the attached comments by Heesom". (c) Haldane in a memo dated 16 May 1995 to the Officer in Charge of Q District said that "this file was inadvertently returned to this office. The "welfare assistance" recommended by Graham has already been provided - in as much as (the complainant) would accept it - she has had a history of personal problems" and (d) In an undated memorandum Chief Superintendent Graham noted that (the presumably attached material) was for "filing in personal file. It appears she may be in need of counselling in relation to her private life?" [113] McKenna went to the Police Association when she became aware of the contents of the documents and a complaint was made to the Force on her behalf. Her complaint was rejected in January 1996, following which she lodged a complaint with the Anti-Discrimination Commission. [114] The Tribunal examined in detail the accuracy of the points made by Sergeant Heesom in his memorandum and which were challenged by McKenna as inaccurate and derogatory comments. His first comment referred to a "stormy relationship" with her previous de-facto. He gave evidence to the Tribunal of himself witnessing telephone conversations on two occasions when McKenna lost emotional control and said that he had information of similar calls. As to his expressed suspicion that "physical force was used on occasions but (that) she would have given as good as she got", he said that "She wasn't a lass who would take a backward step and would not put up with a physical attack. She was well Page 22 of 52 State of Victoria v McKenna, [1999] VSC 310 capable of looking after herself in that regard and as well as that I was aware of two incidents in which she was alleged to have sought to do him physical harm". [115] He then referred to an incident in Bairnsdale where she was alleged to have attempted to injure Cannington with a knife and an incident at the Lakes Entrance golf club where she was alleged to have tried to run him over with a motor car. Heesom said he had heard about the first incident because on her arrival in Bairnsdale she had been called before the District Commander and given a pep talk. She had come to see Heesom because she thought it was unfair. As to the second incident he believed that the Senior Sergeant at Lakes Entrance had briefed him in the matter. [116] His second specific comment in the memorandum was that her nature was such that she would have no hesitation in obtaining an intervention order or using her colleagues if she was in fear of her ex de-facto. As to that, he commented in evidence that the complainant had been in the force some time and well knew how to take out an intervention order and was well aware of the assistance mechanisms in the Force. [117] The third comment in the memorandum was that she was currently "in another relationship with a man from Melbourne and the indications are that this is the main reason for her desire to transfer". [118] In evidence he commented that that was self explanatory and that it was general station knowledge but that he checked the information with other station members. [119] He concluded in his memorandum stating "I believe it is worthy of note that Senior Constable McKenna is being very selective in her applications for transfer and in this current request. An application for a less popular district may well have been successful by now. I can only conclude that she is using devious means to benefit her domestic situation". [120] In evidence he denied that sex or marital status had been a consideration in writing his report. The Tribunal referred to his cross-examination and in particular his admission that he was accusing her of dishonesty and that honesty was an important aspect of being a member of the force. He agreed it was a serious thing to say but one of his reasons for using the language was that the application was made to F District and not, as was usual, to Q District where she was still based. He agreed that he thought that by applying to F District she was trying to escape scrutiny by the people in Bairnsdale. He said he was not aware that she had assistance from Police Welfare in making her application and that the Personnel Officer of F District had suggested the application come straight to them. He added that if he had known that the application for transfer would be widely distributed he would not have described her conduct as devious. [121] The Tribunal then referred to Haldane's evidence of his conversations with Chief Superintendent Peter Graham of F District who told him that the transfer was highly sought after and that he had a list of people ahead of the complainant who had applied for the same position. He said that Graham had told him that he was reluctant to accede to the request unless he was convinced that it was absolutely legitimate. The Tribunal noted that Haldane gave evidence that he spoke to Heesom and asked him for a report which was provided. He then said that he told Graham that he did not think the application was genuine on the ground of pressing necessity. He said he based that opinion on the understanding that the complainant had a domestic problem with her ex partner and was keen to leave Bairnsdale and return to Melbourne where he understood she was in fact already living. He said that Heesoms's report was not couched in language that he would have used himself but the message was clear and succinct and he agreed with the "tenor" of the comments. He denied that in making his comments the complainant's sex or marital status was a factor. [122] After referring to those matters the Tribunal then made the following finding: "The Tribunal finds that the complainant has established its satisfaction that Mr Heesom in regard to complaint item 4.2.6 and Mr Haldane in regard to complaint items 4.2.7 and .8 have discriminated against the complainant on the bases of her sex in the area of her employment. In that regard the Tribunal is satisfied that the complainant received less favourable treatment from both Mr Heesom and Mr Haldane than would have been accorded to a person of a different sex and that the treatment of her was on the grounds of the difference. The Tribunal is satisfied that a person of a different status ie a male would not have been treated in the same way." [123] Para25 and following of the Complaint before the Tribunal recorded this particular complaint as being that inaccurate and derogatory comments were made because of the complainant's sex or marital status. [124] Counsel for the appellants submitted that it was essential to the complaint of McKenna that she demonstrate that the memorandum contained inaccurate and derogatory comments about her. Counsel submitted that whatever else may be said about the Tribunal's reasons, nowhere did it make findings of the facts that would sustain an allegation that the contents of the three memoranda or any of them were inaccurate or derogatory. A substantial body of evidence was adduced to show that they were not but it was submitted that the Tribunal did not deal with that evidence in its reasons. This argument relates to the first question, Page 23 of 52 State of Victoria v McKenna, [1999] VSC 310 "20. Whether it was open to the Tribunal as a matter of law to find that S/Sgt Heesom and Supt Haldane had discriminated against the respondent on the basis of her sex notwithstanding that it did not consider whether the actions alleged had in fact occurred, that is to say, whether a. the comments made by S/Sgt Heesom in a memorandum to Supt Haldane, b. the comments endorsed by Supt Haldane in a memorandum to C/Supt Graham, and c. the comments made by Supt Haldane in a memorandum to C/Supt Graham, were inaccurate and/or derogatory " Counsel for McKenna drew attention to the fact that Heesom had acknowledged the derogatory impact of his reference to deviousness on the part of McKenna. He also drew attention to the fact that McKenna gave evidence that she had been refused counselling at Bairnsdale and that thus it was open to the Tribunal to find there was also inaccuracy in the comments made about her attitude to counselling. Counsel also referred to the comment in the third memorandum that McKenna needed counselling for her private life and the fact that the Tribunal was considering the evidence in the context of the discriminatory environment to which reference has already been made. Counsel emphasised the passage quoted above where Heesom expressed the view he had of the respondent. In relation to Haldane, in particular, counsel said that it was open to the Tribunal on the evidence to find that his comment that McKenna was not genuine was inaccurate and derogatory and drew attention to the fact that he had based his views on what he believed he knew about her private life but he had not spoken with her. [125] The Tribunal did not spell out its view as to what it regarded as inaccurate or derogatory. It was plain, however, that the comments of Heesom were derogatory and they were endorsed by Haldane. The Tribunal could not have reached the decision it did absent a conclusion that the statements were at least derogatory and it is reasonable to conclude that that was a conclusion that the Tribunal reached. [126] I turn to the next question, question 2: "21. Whether it was open to the Tribunal as a matter of law to find the complaint proven when the Tribunal proceeded as though the complaint related merely to the fact that the memoranda had been sent, rather than to the question whether their contents were inaccurate and/or derogatory." [127] Counsel for the appellants submitted that the Tribunal appeared to treat the complaint simply as a complaint that the memorandum had been sent because of McKenna's sex and/or marital status. Counsel submitted that that was not McKenna's complaint. Counsel argued that the only evidence from the complainant that the contents of any of these reports were inaccurate was her denial that she had been refused welfare assistance from sources at the Bairnsdale police station. Counsel argued that that related only to the memo under the cover of which Haldane returned the file to his district commander in Morwell. Counsel submitted that Haldane clearly believed the substance of what was in the reports as did Heesom and no evidence taking issue with the substance of the reports was given by the respondent McKenna. Counsel submitted that while Heesom was cross-examined about the reasonableness of the report he was not challenged as to its accuracy. [128] In my view a fair reading of the Tribunal's reasons leads to the conclusion that the Tribunal considered both the content of the documents and the fact that they were sent. [129] The following questions are said to arise out of the handling of the evidence by the Tribunal "22. Whether the finding by the Tribunal that the respondent's sex was the basis or the ground upon which a. the memoranda had been sent, or alternatively, b. to the extent that the Tribunal did deal with the matter on the basis of the inaccurate and/or derogatory nature of the contents of the memoranda, contents of that kind were included in the memoranda, was open, alternatively reasonably open, on the evidence. 23. Whether the finding by the Tribunal that, in circumstances which were the same, not materially different or similar, S/Sgt Heesom and Supt Haldane a. would not have sent the memoranda, or alternatively b. to the extent that the Tribunal did deal with the matter on the basis of the inaccurate and/or derogatory nature of the contents of the memoranda, would not have included such comments in the memoranda, Page 24 of 52 State of Victoria v McKenna, [1999] VSC 310 in relation to a male member of the Force under their command was open, alternatively reasonably open, on the evidence. 26. Whether the Tribunal rejected the sworn evidence of S/Sgt Heesom and Supt Haldane with respect to the basis or the ground upon which they wrote and endorsed the memoranda and with respect to the question whether they would have done so in the case of a male member if the circumstances were the same, not materially different or similar, notwithstanding that there was no direct or circumstantial evidence to support such a course, and no disclosed basis for rejecting that evidence." Views may differ as to whether on the evidence before the Tribunal the sex of McKenna was the basis of, or a substantial factor, in the conduct of Heesom and Haldane and whether the handling of the matter would have been different if a male member of the force had been involved. The question, however, is whether it was open to the Tribunal to reach the conclusions that it did. Counsel for McKenna called in aid the evidence referred to above in relation to the basketball, document and address incidents which was evidence before the Tribunal which would have supported a finding of a sexist environment. He also relied upon the evidence of the basketball, document and address incidents and the conduct of those matters by the police including Haldane as providing evidence upon which the Tribunal could find that there was a hostility directed towards McKenna which had its origins in her failure to fit the feminine mould. It was submitted that on the evidence before the Tribunal it was open to the Tribunal to find that Heesom and Haldane were demonstrating the discriminatory attitude that had already emerged in the Bairnsdale Force towards McKenna. He pointed to the extremely unsympathetic way in which the matter was handled by them, the failure to contact her before making such extremely serious derogatory remarks about her honesty, the consistency of their conduct with the pattern revealed by Crossley of taking the worst view of a situation so far as McKenna was concerned and argued that it was open to the Tribunal to find the remarks in the memorandum were presented in a snide fashion. [130] In my view, it was open to the Tribunal for the reasons advanced by counsel for McKenna to determine that the complaint was made out notwithstanding the denials of Heeson and Haldane. [131] The next question to consider is question 24. It is as follows: "24. Whether the Tribunal failed to address (other than - to the extent that it did - nominally) the questions which it was required to address, namely, whether the respondent's sex was the basis or the ground upon which inaccurate and/or derogatory comments were included in the memoranda by S/Sgt Heesom and Supt Haldane and, in the case of the former, were endorsed by Supt Haldane and whether S/Sgt Heesom and Supt Haldane would have acted any differently in the case of a male member of the Force where the circumstances were the same, not materially different or similar." The Tribunal clearly was invited to consider whether the two statutory elements were established. Whether it failed to address the matter depends upon the view that is formed as to whether it was open to the Tribunal to make the findings that it did. I have indicated that it was and, therefore, this challenge is not made out. [132] The Tribunal was also criticised for expressing a "rolled up conclusion". It was put that there was no analysis or explanation as to how the conclusion was arrived at and there was nothing in the evidence which would reasonably sustain it. It was put that the Tribunal did not even propose a hypothesis which might as a matter of common human experience link what Heesom and Haldane did to McKenna's sex. [133] These criticisms relate to the next question: "25. Whether, in relation to its ultimate findings as to the ground or basis upon which S/Sgt Heesom and Supt Haldane wrote and endorsed the memoranda, the Tribunal - a. failed to provide adequate reasons for those ultimate findings, b. failed to make adequate findings of the facts upon which those ultimate findings were based, c. failed to disclose the basis for the drawing of any inferences involved in those ultimate findings, or d. failed to expose the reasoning process which led to those ultimate findings." [134] A reading of the reasons on their own leaves an initial impression of the failure to set out all the steps in the reasoning process. Referring to the submissions made to the Tribunal, however, on McKenna's behalf, it would have been quite clear that it was essentially accepting the case put forward for McKenna that the actions of Heesom and Haldane were further manifestation of a hostile discriminatory attitude towards McKenna which was based on issues of sex. In all the circumstances the reasoning of the Tribunal is adequate. Page 25 of 52 State of Victoria v McKenna, [1999] VSC 310 [135] Again on proper analysis, this is another example of the expert Tribunal not stating what was obvious to it - namely that the conduct complained of fitted into the pattern of a hostile discriminatory attitude based on the sex of the complainant. [136] The next question to be considered is similar to questions raised on other decisions, namely the alleged reversal of the onus of proof. "27. Whether the Tribunal implicitly imposed upon the appellants an onus of proof to establish to the Tribunal's satisfaction that the respondent's sex had not been the basis or ground upon which S/Sgt Heesom and Supt Haldane wrote and endorsed the memoranda and that they would have proceeded in the same way in the case of a male member if the circumstances were the same, not materially different or similar. " Again, the issue arises only if there was no evidence to support the finding. As I have indicated in my view there was and, therefore, it cannot be demonstrated that the onus of proof was reversed, the Tribunal's language not supporting such a view. [137] The next question, question 28, raises the Briginshaw issue and I have already dealt with that. [138] Finally, a question is again raised because of a statement to the Tribunal by counsel for McKenna that the complaint in this instance did not involve discrimination in the "primary sense". The following question is formulated. "29. In the light of the submission by counsel for the respondent that the writing and endorsement of the memoranda did not amount to acts of discrimination in the primary sense, whether the finding by the Tribunal that S/Sgt Heesom and Supt Haldane had discriminated against her on the ground or basis of her sex - a. constituted a denial of natural justice to the appellants, or b. was in other respects open to the Tribunal as a matter of law." [139] The same issues arise here as arose in the similar question raised in relation to the decision about the release of the address. The same arguments are put and in my view the same consequences follow. Thus this issue is not made out. [140] For the foregoing reasons, the appellants' challenge to the Tribunal's decision on this discrimination claim fails. Victimisation of the complainant by Arnold and Fyffe [141] The alleged victimisation occurred after the 1995 legislation came into effect. It is therefore necessary only to consider the provisions of the 1995 Act. S97 of that Act provides as follows: "97. What is victimisation? (1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person or a person associated with the other person - (a) has made a complaint against any person; (b) has brought any other proceedings under this Act against any person; . . . (f) has alleged that any person has contravened a provision of Pt3, Pt5 or Pt6 unless the allegation is false and was not made in good faith; . . . (2) It is sufficient for subs(1)(f) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened. (3) In determining whether a person victimises another person it is irrelevant - (a) whether or not a factor in subs(1) is the only or dominant reason for treatment or threatened treatment as long as it is a substantial reason; (b) whether the person acts alone or in association with any other person. Page 26 of 52 State of Victoria v McKenna, [1999] VSC 310 To understand the issues it is necessary to refer in some detail to the evidence led before the Tribunal and their reasons. [142] After having some leave in the middle of 1995 because of the state of her health, McKenna resumed work as a police officer at Warragul on 1 August 1995. She was awaiting the outcome of an application for a transfer to Knox district. Her health was still poor, according to her evidence, during the latter half of 1995. [143] She gave evidence that after learning about her failure to secure a transfer to Knox district and becoming aware of the memos complained of above, she lodged her first complaint with the Commission on 8 March 1996. At the time she was doing general duties at Warragul police station. At the end of 1996 she went on annual leave and returned in January, according to her evidence, enthusiastic and quite happy. Her evidence was that a day or so after her return to work she was called into the Senior Sergeant's office by Sergeant David Smith and Acting Sergeant Kelton from another station. Her evidence was that she was given a lecture for about an hour about perceived problems and about her need for help. According to her evidence she became distressed as the meeting continued. Her evidence was that Smith had not been at the station for six months due to leave and duties elsewhere and that he had only been back in the station for a week. Her evidence was that he had investigated and found things out. Her evidence was that everything came back to her again and it reminded her of the talk that she had been given by Crossley at Bairnsdale. She had come back to work enthusiastic and quite happy and had been brought down by this meeting. In her evidence she acknowledged that she was angry and she didn't want to talk to him. She said that she tried to avoid conversation with him. He was short with her in turn giving her directions abruptly. [144] A tense two weeks passed. There was then an incident on 31 January 1997 when a woman came to the watchhouse counter with a subpoena and conduct money of $10 for service on a police officer. Smith and McKenna gave different accounts of what occurred. The upshot appeared to be, however, that Senior Sergeant Grist on 5 February 1997 sent a memorandum to McKenna referring to the 31 January incident alleging the ignoring of instructions by her and the use of offensive language. The memorandum asked her to respond by 8 am the next day. After speaking to Grist, McKenna received a memorandum from him dated 6 February 1997 setting out the alleged description of events. "2. At about 1400 hours on 31.1.97 you sought advise from Sergeants Smith and Gargan in relation to a subpoena and conduct money that had been received at the Watch House. Sergeant Smith gave you advice regarding the money and you were not satisfied with this advice. He then informed you that instructions in relation to this were contained in the Manual of Procedures and repeated his instructions. You then left the office with an apparent dissent to his instructions. 3. A short time later he observed you place the money in the safe and repeated his instruction. 4. He followed you into the mess room and asked you where you were going. Your reply to him was, "I will never forget what you fucking did to me you are a fucking arse hole". 5. A short time later he approached you in the Clerk's office at the rear of the police station where he spoke to you several times before you responded to him. 6. He told you to have respect for a sub-officer and your reply was that, "I don't have to talk to you", and that if Smith continued you would go home. 7. Sergeant Smith then informed you that you would be staying, your language was not acceptable and the matter would be reported." [145] McKenna responded by a memo of her own dated 9 February 1997 (exhibit J). In her memorandum in response she denied the allegation that she had ignored the instructions of a sub-officer. She referred to the incident concerning the subpoena monies. Her account of what occurred in the sergeant's office when she sought instructions was as follows: "2. . . I said generally, 'what should I do with this?' I received a very aggressive, short, sharp reply from Sergeant Smith. He said, 'Put it in the interim receipt book' I said, 'Don't I have to put it in the watch house keepers book as money received?' He said, 'No, look I have already told you what to do just do it McKenna?' Page 27 of 52 State of Victoria v McKenna, [1999] VSC 310 I said, 'I am sorry, I was only asking because I saw one get written in the other day?' He said, 'I told you what to do McKenna, look it up in the Operating Procedures Manual.' His demeanour and tone of voice was very aggressive. I then left the Sergeant's office and went into the Watch House area and got the interim receipt book. I had it in my hand when Sergeant Smith followed me to the passageway near the side door. At this point he yelled at me again. I felt like he was antagonising me and pushing me. I am not sure the exact words used because I was beginning to become upset at the way he was speaking to me. I felt like he was pushing me. I am not sure what I said to him but I was angry at how I was being treated. I then walked down to the back part of the building, to try and recover from the incident and partly to ask the clerk if I also needed to write the subpoena in the summons book. I went to ask the clerk about this because I was getting no assistance or guidance from the Sergeant at all. I did not know where the Operating Procedures Manual was. I was also too afraid to ask Sergeant Smith because of the mood he was obviously in?" (sic) I believe Sergeant Gargan may have gone out." She then described how she set about writing the details of the subpoena in the interim receipt book and how she completed that and was watching the details being written into the summons book by another officer. She described Sergeant Smith appearing again and being extremely rude and aggressive to her. He again accused her of not following his instructions which he said upset her greatly. She tried to walk away and he followed her continuing to "tell me off". She went on: "I told him to stop following me and leave me alone. I further stated that if he did not stop I would contact the Police Association. He told me to do that. I then dialled the number because I could see no way of stopping this abuse. Sergeant Smith left the station while I was dialling the number. He did not approach me for the rest of the afternoon until I finished work at 3pm." As to the allegation of using abusive language she stated in her memo that she could not remember what she said to Sergeant Smith but that she was known at the station for not swearing or using abusive language. She dealt with other matters of detail and then concluded her memo listing what she described as mitigating circumstances. She referred, inter alia, to an incident that had occurred on Monday 13 January 1997 when she had been dressed down by Smith when she was at the time sick with flu. She referred to the Equal Opportunity matter relating to the Bairnsdale police station which she described as ongoing at the Equal Opportunity Commission and the stress associated with that. She referred to the fact that she was trying to purchase a house or property closer to Warragul and had had problems in late January with that. She wrote that she had told Sergeant Smith on the 13th January that she was under a lot of pressure. She expressed her hope that there would be a improvement in communication. She repeated her denial of the allegation of disobeying instructions and said that she did not believe she used offensive language or displayed a lack of respect towards him. [146] Grist responded by issuing the complainant with a cautioning notice dated 14 February 1997. On 18 February 1997 McKenna requested a review based on the merit of the cautioning notice on the grounds that she had satisfactorily replied to Grist's memorandum of 6 February by her response of 9 February and repeating that she disputed the allegation that she did not put the conduct money in the receipt book in a reasonable time and that as there was no witness to the exchange between her and Smith there was no evidence on the balance of probabilities to support Smith's allegation. [147] On 24 February 1997 Superintendent Fyffe advised McKenna that a review would be conducted by Inspector Arnold. On 27 February Mr Arnold advised by memorandum to the Divisional Commander of No 1 Division Q District that a review had been conducted and that he had issued an admonishment notice (a more serious penalty) and that he had withdrawn the cautioning notice. [148] McKenna gave evidence that she was asked to attend headquarter at Morwell where she saw Arnold. She said he put a piece of paper on the desk and said "We've conducted the review and we have decided to give you an admonishment notice". She gave evidence that she said to him that he had not asked her about what happened and that he replied that he did not care to ask her any questions. He said that he had conducted a review and that that was the outcome. She described Arnold as appearing quite satisfied sitting behind his desk smiling and giving her the piece of paper and not answering any of her questions. She said she suffered another break down feeling absolutely defeated. [149] The evidence before the Tribunal revealed that Inspector Arnold reviewed the existing material and obtained further material. This comprised, firstly a report from Senior Constable Wiltshire that on 29 January 1997, two days before the difficulty between McKenna and Smith, McKenna had referred to Smith, sotto voce, as an "arsehole" as he was walking out of the mess room. The other piece of information was a statement by Sergeant Grist in a Page 28 of 52 State of Victoria v McKenna, [1999] VSC 310 telephone conversation with Arnold to the effect that the respondent had said to Grist after the issuing of the cautioning notice in relation to the abusive language allegation "I don't know whether to admit it or not, if I did say it, it would have been very softly". The respondent denied having said that to Grist in her evidence to the Tribunal. Grist however was not cross-examined to suggest that he was wrong. [150] Arnold, having completed his review concluded that the cautioning notice was justified but that the behaviour warranted a more serious penalty namely the issue of an admonishment notice and he advised Superintendent Fyffe in his report of 27 February 1997 that he had issued one. [151] Counsel for the appellants submitted that the complaint of the respondent relates to the upgrading of the notice from a caution to an admonishment. It was put that McKenna did not complain that the original cautioning notice was victimisation. [152] In dealing with the issue the Tribunal set out the evidence of McKenna and Smith in some detail. In the course of that summation it made some express findings. (a) It accepted that McKenna did at some stage during the incident on 31 January 1997 use an offensive expression towards Smith. (b) It also accepted that there was considerable tension between McKenna and Smith following the events of 13 January 1997, that Smith was aware of those tensions, that in his reaction to the events surrounding the question of the conduct money he may have acted in a way that contributed materially to the increase of the tension between him and McKenna particularly by his pursuit of her around the station within minutes of enquiry about the conduct money being made to him and the other sergeant by McKenna. The Tribunal said that from his own evidence it was clear that he was "to say the least not acting in a manner calculated to avoid further inflaming the situation". (c) The Tribunal also held that at material times at Warragul station McKenna was showing signs of stress and displaying mood changes which from time to time "manifested themselves in inappropriate behaviour as seen by her colleagues and superiors". It accepted Senior Sergeant Grist's evidence about having monitored her progress at Warragul station and having observed her and heard reports at Sergeants' meetings and being alerted to McKenna's mood changes by Senior Constable Jennifer Wiltshire. He had placed her on watchhouse duty prior to these events. He told her that it was not for disciplinary reasons but for her own benefits. (d) The Tribunal also appeared to accept that Senior Sergeant Grist had discussed his concerns with McKenna in 1996 and she had accepted that discussion. The Tribunal accepted that Sergeant Grist saw no reason to take further action unless something intervened in the mean time. [153] The Tribunal said there was no evidence before the Tribunal that something else in fact intervened between December 1996 and January 13 1997. It pointed out that in any event McKenna had been on leave for some of that period. The Tribunal indicated that in its view whatever Smith may have had by way of motivation to speak to Acting Sergeant Kelton about the behaviour of McKenna, the matter had already been dealt with by the Officer in Charge of the station. It noted that Grist said that he may well have communicated his earlier measures to Kelton. [154] The Tribunal noted that Grist regarded the cautioning notice to be the only disciplinary measure that was warranted. In referring to the alleged additional evidence relied upon by Arnold and in particular the reference to Smith as "an arsehole" on 29 January 1997, the Tribunal stated that it accepted on the evidence before it "that an obscene expression may have been used by the complainant with regard to the person of Smith outside his hearing in the presence of fellow police officers on 29 January 1997." The Tribunal also accepted that this contributed to motivating Arnold to upgrade the cautioning notice to an admonishment notice. The Tribunal also noted that it was common ground that Arnold chose not to speak to the complainant before presenting her with the "fait accompli" of the admonishment notice and the withdrawal of the cautioning notice and that he had decided not to speak to her before presenting her with a notice other than in a formal manner warranted by the occasion. The Tribunal went on to observe that there had been a serious denial of natural justice because Arnold in the course of the review had taken into account another event on another day and that that had not been put to McKenna before the penalty had been increased. The Tribunal had noticed that the additional evidence of the earlier incident did not become part of the details of offence or behaviour appearing on the face of the subsequent issued admonishment notice. [155] The Tribunal referred to the fact Arnold and Fyffe both acknowledged that they have no recollection of any penalty being upgraded on a review of a disciplinary notice. Arnold said that he had been told that it had never been done. [156] Fyffe, in his evidence said that he regarded the process followed by Arnold as fair and he supported his methods and his conclusion. He also said that he was aware of an equal opportunity complaint lodged by McKenna. He said that when Grist originally told him of the incident of indecent language on 31 January 1997 concerning Smith "he was aware of contact" with Peter Breadmore Director of Personnel in the Force. He said that mindful of Page 29 of 52 State of Victoria v McKenna, [1999] VSC 310 the equal opportunity complaints made by the complainant, Breadmore had advised that the incident of 31 January was a district management problem and not to be treated in any other fashion. [157] The Tribunal noted that Arnold said in evidence that: "he 'was vaguely aware' that there had been complaints of discrimination in relation to the complainants time in Bairnsdale but that he had not been briefed in an official capacity. At p768 he said that he was aware that there had been incidents at Bairnsdale. At p769 he said that the main thing that he heard was 'a cautioning notice being issued for a sporting event or something like that and that Senior Constable McKenna had taken some sort of action." He denied that any awareness of the Equal Opportunity issue was a part of his reasoning in conducting a review process or that it formed any part of the decision making process. [158] Counsel for the appellant submitted that while Arnold acknowledged a vague awareness of the complaint there was nothing in the evidence that would justify the conclusion that he knew there had been a complaint under the Act. Arnold said that he was aware that McKenna had taken some sort of action but was unaware what it was. It was put that because he did not know what she had done he could not have acted for the alleged reason (Musgrove v Maryland Frost Juices Pty Ltd (1980) 47 FLR 156 (s10 of the 1995 Act does not apply to victimisation)). [159] After referring to these matters the Tribunal stated the issues which it had to determine. It said, firstly, that it had to determine whether Arnold and Fyffe, victimised the complainant by upgrading a cautioning notice to an admonishment notice. It stated that "The complainant must first prove that she has been subject to detriment - the upgrading of a disciplinary notice - because she has made a complaint under the Act." The Tribunal stated that although the complainant did not have to establish a causal link between "the making of the complaint and the third and fourth respondents themselves," there had to be a causal link demonstrated between the complaint and the subjection to detriment. It commented on the difficulty of establishing such a causal link because of the nature of the complaint. It commented that direct admissions are rarely likely to be present and for that reason the Tribunal may be called upon to draw inferences from primary facts. It then stated that it was well established that inferences could not be drawn "if a more probable and innocent explanation is available on the evidence" should the Tribunal find itself "minded to draw an inference of discriminatory intent from the circumstances: • that an upgrading of a disciplinary notice was an unprecedented occurrence in the Police Force; • that the action was instigated by officers who had knowledge of a recent complaint against the Force and who knew the complainant had been affected in her health by events that led to the complaint; • it was also known then that the complainant displayed related signs of stress in her work." The Tribunal commented that if it was minded to draw such an inference from such circumstances the Tribunal would need to determine whether there was a "more innocent explanation" for the subjection to detriment. [160] The Tribunal then considered Arnold's explanation that the actions of the complainant were "so unprofessional and went so much 'to the core of what it is all about in supervision' (p762 of the transcript) that a process, a further disciplinary punishment, was called for that had never, since the introduction of the new disciplinary procedures of the Force, happened before." The Tribunal then commented that it had "great difficulty . . . in accepting Mr Arnold's version of the course of events. It does not accept that the facts and circumstances he was presented with in any way painted the picture he described in p762 of the transcript." The Tribunal noted that Grist's action in issuing a cautioning notice was a substantial disciplinary measure provided in the disciplinary procedures manual of the Force. It also commented that he, was as station commander, the person closest to the events and with a good knowledge also of the antecedents of the complainant. It also noted Grist's decision was on the basis of information available to him at the time which included the 29 January 1997 Page 30 of 52 State of Victoria v McKenna, [1999] VSC 310 allegation. The Tribunal also noted that importantly there was no provision in the disciplinary procedures manual for the person laying the complaint against another police officer to have a decision reviewed if aggrieved by the level of punishment applied to the person complained about. While conceding that para3.16 of the manual left open what might be the result of the review, the strong underlying inference in the Tribunal's view was that the procedure was designed for one of two outcomes - either that the decision was rescinded or that it stood. It then referred again to the principles of natural justice which would require notice to the applicant for review of the possibility of an upgrading penalty and that there was no provision in the manual for that to occur. The Tribunal held that given the fact that there was no procedure for notice and no history of upgrading on review that it could safely assume that there was no implied notice to be held to have been given to McKenna. The Tribunal commented that there was no obvious procedural error nor were the facts available to the reviewer materially different to those available to Grist. [161] It referred to two possible explanations for Mr Arnold acting in the denial of natural justice. It suggested that one was that he was convinced that McKenna required a greater measure of punishment. The other was that he had an agenda that was linked substantially to the complaint lodged with the Commission. The Tribunal rejected the first suggestion given the facts and circumstances of the case as assessed and weighed by Grist. It said that given also the unprecedented nature of the decision to upgrade, the second explanation was the more probable -that the complaint against the force had to come to the notice of the officers at headquarters in Morwell and that there was a desire to deal with her appropriately in that circumstance. [162] The Tribunal then noted the following: "• that the issue of a cautioning notice in relation to a sporting event in Bairnsdale was specifically known to Mr Arnold (768)." This finding is the subject of question 44 "44. Whether the finding by the Tribunal that the cautioning notice in relation to a sporting event in Bairnsdale was "specifically" known to Insp Arnold was open, alternatively reasonably open, on the evidence. It is pertinent to quote the evidence given by Arnold in cross-examination (Transcript, at 768-769): "You told us you were not officially informed about this lady's Equal Opportunity complaint but you were aware of it unofficially? - All I was aware - that there had been incidents at Bairnsdale but because Senior Constable McKenna is not under my span of control in Number 1 Division I certainly wasn't briefed about it. But Bairnsdale certainly is within . . . ? - Gippsland. The Kew [Q] District ? Yes (He then gave evidence about the division structure). Alright. You were aware unofficially, as was Mr Fyffe, what the nature of the complaints that she was making about Morwell were, that they were to do with discrimination and sexual harassment? - Sorry? which ? About Bairnsdale I am sorry? - Really, the main thing I had heard, a Cautioning Notice being issued for a sporting event or something like that and that Senior Constable McKenna had taken some sort of action. As to exactly what action she had taken, I was unaware." The appellant submitted that the issuing of the cautioning notice was not 'specifically known' to Arnold on the evidence. Plainly on his evidence the cautioning notice was specifically known to him. The critical question was his knowledge of the Equal Opportunity Act complaint. While it does not seem to have been commented on by the parties or the Tribunal, I note that the report submitted by Arnold, exhibit 9, contained in it the statement prepared by McKenna and that that statement in turn stated the following "8. I have an Equal Opportunity matter still ongoing at the Equal Opportunity Commission that occurred whilst I was stationed at Bairnsdale police station. At times the pressure from this is very high. . . . " If Arnold read all the papers in his report, and he appears to have asserted that he did, he would have read that paragraph and accordingly would have had knowledge of the Equal Opportunity complaint. At the same time it may Page 31 of 52 State of Victoria v McKenna, [1999] VSC 310 be said this was something that the Tribunal had before it in determining whether he had notice of that complaint. This aspect of the matter, however, has not been canvassed by the parties before me and accordingly I will deal with the matter on the basis that it was not considered. [163] Next the Tribunal commented: "that there had been contact with Mr Breadmore about the liberty the district had in disciplining the complainant, given her complaint before the commission relating to the Bairnsdale events." Counsel for the appellants submitted that this was a tendentious summation of the evidence attempting to suggest that there was instruction given in code from Breadmore to Smith and command that they could feel free to discipline her for her complaint in relation to the Bairnsdale matters. Question 45 is directed to this issue. "45. Whether the Tribunal's construction of the advice from Mr Breadmore, to the effect that the disciplining of the respondent was a district management problem and was not to be treated in any other fashion, that this constituted in effect a "liberty" - or a "clearing of the way" - to discipline the respondent for having made a complaint under the Equal Opportunity Act 1995 was open, alternatively reasonably open, on the evidence." Counsel for McKenna submitted that there was no such implicit assertion as was suggested by the appellants. The evidence was relevant it was said because it confirmed that there was knowledge at Morwell of the respondent's Equal Opportunity complaint. In other words all the Tribunal was noting was the information passed not that Breadmore said that they should victimise McKenna. Nothing sinister was being suggested. [164] I agree with these comments. The significance of the contact with Breadmore is that it confirms that senior people at Morwell were alive to the existence of the Equal Opportunity complaint. [165] The Tribunal then commented: "• that the stressed circumstances of the complainant and the fact that the Bairnsdale events were a likely contributing factor to these circumstances, were known both to Mr Arnold and Mr Fyffe" Counsel for the appellants did not dispute the finding but submitted that it was obscure how those circumstances made it more likely that Arnold and Fyffe would act against McKenna because of her complaint. This is relevant to the reasonableness of their actions and the "no evidence" questions (see below). "• that no account was taken by either Mr Arnold or Mr Fyffe of the surprising initiative taken by Mr Smith to counsel the complainant on her return from leave with Mr Kelton, in the absence of Mr Grist, after appropriate measures had already been taken by Mr Grist and discussed with the complainant;" [166] The appellants submitted that this finding was again irrelevant and, if relevant, incorrect in that the actions of Grist were unknown to Arnold or Fyffe. [167] There are two aspects to the passage which I have quoted above. The first notes that neither Arnold or Smith took account of "the surprising initiative taken by Mr Smith to counsel the complainant on her return from leave with Mr Kelton" and goes on to refer to the fact that appropriate measures had already been taken by Grist and discussed with the complainant. The reference to the initiative being "surprising" appears to me to warrant the conclusion that the Tribunal was having regard to the measures taken by Grist and therefore its statement assumes that Arnold and Fyffe were aware of those measures. I am persuaded that the evidence does not support that conclusion. McKenna said nothing in her statement about her dealings with Grist prior to her going on leave. There was no evidence before the Tribunal that Grist had conveyed that information to Arnold or Fyffe or anybody else. Assuming then that an error of law has been made out the issue arises as to what is its impact. This issue is discussed by Phillip JA in S v Crimes Compensation Tribunal [1998] 1 VR 83 at 90. His Honour stated: "Whether the unsubstantiated finding has led to relevant error of law in a given case will then depend upon the significance of that finding to the ultimate determination made: cf Bannister v Walton at 731 C - D. If it was a finding of jurisdictional fact which was a condition precedent to any exercise of power by the Tribunal, an exercise of the power may well be vitiated; but that is an unusual case and I do not explore it. More commonly the unsubstantiated finding will not bear upon jurisdiction; it will merely have played some part in the process which led towards the determination that the particular circumstances of the claimant fell within, or did not fall within, the statutory description in point. In my opinion, there will not have been relevant error of law unless the unsubstantiated finding was in some way critical to that ultimate determination: cf Curragh Queensland at 220-221 per Black CJ. Perhaps in some cases it will be difficult to decide whether the unsubstantiated finding was critical to the ultimate determination of the Tribunal and in others the problem may be exacerbated by questions of onus (as in Azzopardi), but that does not affect the principle. Page 32 of 52 State of Victoria v McKenna, [1999] VSC 310 To perceive an error of law in the ultimate conclusion by reason of a totally unsubstantiated finding which is critical to it can rest, I think, on the recognition of an unstated premise in the legislation that the Tribunal will proceed only according to the evidence and not arbitrarily, according to some frolic of its own: cf Smith, para5 - 087. Again I say 'evidence' only for the sake of simplicity; in a case where the Tribunal is authorised to obtain information otherwise or to act upon its own expertise, it may be more difficult to show that the finding was not open in view of the possibly uncertain nature of the material upon which the finding could be based, but the principle is unchanged. Unless the ultimate conclusion of the Tribunal (in relation to the application of the statute to the case of the claimant) depended upon the particular finding which was not open so that it may fairly be said in consequence that the conclusion itself was not open to the Tribunal what was otherwise no more than an error of fact will ordinarily not serve to demonstrate error of law." I am satisfied in the present case that assuming the finding stated was not supported by the evidence, the finding was not a critical finding in the sense referred to by his Honour and it cannot be shown in my view that, if the finding had not been made, the ultimate conclusion could not properly have been reached. [168] The next finding of the Tribunal was as follows: "that both Mr Arnold and Mr Fyffe appear to have chosen to ignore the inflammatory role played by Mr Smith in the 31 January incident, the genesis of which on any balanced view, lay in a very minor administrative matter concerning conduct money." Counsel for the appellants submitted that the Tribunal in effect was suggesting that Arnold and Fyffe should not have made the factual findings or assessments which they did. It was put that they clearly did not consider it a very minor administrative matter. Clearly they did not regard Smith's role as inflammatory. It was put that in those circumstances it is understandable that they ignored his role. They also had Inspector Majors comment that Sergeant Smith's personal integrity was "beyond reproach". It was also submitted that this point was not relevant in any event because there was no complaint made by McKenna about the original cautioning notice as such but rather that it should not have been upgraded. The issues raised here are dealt with in question 47. "47. Whether it was open to the Tribunal to find (implicitly if not expressly) that Insp Arnold and Supt Fyffe - a. regarded the role played by Sgt Smith in the 31 January incidents as an inflammatory one, and b. "chose" to ignore that role." It appears to me that the Tribunal did not find that Arnold and Fyffe regarded the role playing by Sergeant Smith as inflammatory. The Tribunal simply found that his role was inflammatory and that Arnold and Fyffe chose to ignore it. It was open to the Tribunal to conclude that the issue was a minor administrative matter which Smith had irrationally inflamed and that as a result, Arnold and Fyffe were being equally irrational about the matter in choosing to ignore Smith's role. The fact that a complaint was not lodged in respect of the caution notice does not mean that it could not also be relied upon as evidence of victimisation or at least discrimination resulting in victimisation by Arnold and Fyffe. [169] Returning to the Tribunal's reasons, it was then critical of Smith saying that even if one accepts his evidence of what occurred his conduct was incompatible "With the stressed state Mr Smith knew her to be in and with reasonable supervisory standard that could be expected from a senior officer." [170] The Tribunal then went on to hold that the actions of Arnold were known at all stages by Mr Fyffe and approved and not questioned by him. It commented "an experienced and very senior officer, Mr Fyffe never challenged the appropriateness or the methods and conclusions of Mr Arnold" I assume this comment is made in criticism of Mr Fyffe. The Tribunal then said that in his case it found that "The more probable explanation underlying the subjection to detriment that was condoned, approved and supported by Mr Fyffe was, as with Mr Arnold, that the complainant had come to notice at headquarters with regard to her Page 33 of 52 State of Victoria v McKenna, [1999] VSC 310 equal opportunity complaint and that the circumstances provided an opportunity to deal with her, the way already having been cleared with Mr Breadmore when Mr Grist proposed the first formal measure against her." [171] The Tribunal said that it found in the case of both Arnold and Fyffe that existence of a complaint against the Force was "the substantial reason for the subjection to detriment of the complainant" and found the complaint proved. The Tribunal then went on to say the following: "The Tribunal voices its concern that very senior officers in Q district thought they were justified in using the disciplinary procedures of the Force in a novel and unprecedented way that appeared not to have been contemplated by those that devised the procedures because these had provided for an application for review only by the disciplined officer not by the Force itself. That these senior officers were prepared to engage in this unique measure in the case of a female officer whom they knew had lodged an equal opportunity complaint against the Force in respect of disciplinary measures the Tribunal finds all the more disturbing. The Tribunal has already made observations above about the breaches of natural justice that were part of this measure." [172] The appellants submitted that the findings made by the Tribunal were pure guess-work and perverse. [173] The issues raised by the appellants give rise, it is alleged, to some 12 questions of law. Several are directed to the question whether the decision was open on the evidence. "37. Whether the finding by the Tribunal that Insp Arnold recommended to Supt Fyffe that the cautioning notice should be upgraded to an admonishment because the respondent had made a complaint under the Equal Opportunity Act 1995 was open, alternatively reasonably open, on the evidence either at all or without rejecting the evidence of Insp Arnold that, at the relevant time, he was unaware as to exactly what action the respondent had taken in relation to a cautioning notice issued in relation to a sporting event. 38. Whether the finding by the Tribunal that Supt Fyffe upgraded the cautioning notice to an admonishment because the respondent had made a complaint under the Equal Opportunity Act 1995 was open, alternatively reasonably open, on the evidence. 39. Whether the finding - a. that the respondent had come to the notice of officers at headquarters in Morwell with regard to her complaint against the Force, or b. that Insp Arnold and Supt Fyffe (and other un-named senior officers at Morwell) desired to "deal with" the respondent and that this was their chance or opportunity to do so, was open, alternatively reasonably open, on the evidence at all or in the absence of any such motivation having been put to Insp Arnold and Supt Fyffe when they gave evidence before the Tribunal." [174] Another question in the same broad category is question 43. "43. Whether it was open to the Tribunal, as a matter of law, to find that the respondent's complaint under the Equal Opportunity Act 1995 was the reason for upgrading the cautioning notice to an admonishment notice without taking into account (or, to the extent that it did take into account, without dealing with directly) the direct denials of Insp Arnold and Supt Fyffe and without addressing the question whether they were witnesses of truth." [175] I have referred above to points made by the appellants in support of their case that the findings made were not open on the evidence. A key question was the knowledge of McKenna's Equal Opportunity complaint by relevant officers. Clearly Fyffe had that knowledge. The appellants argued that it was not open to find that Arnold had knowledge. (Question 37 and 39(a)). [176] For McKenna it was submitted that the knowledge of the Equal Opportunity complaint was widespread. Counsel referred to the fact that Smith was aware of it (747-748). So too was Breadmore, the Director of Personnel (747). Grist (with whom Arnold consulted) was aware of it (747) and so was Fyffe (with whom Arnold also spoke) (748). Counsel submitted that it was open to the Tribunal to conclude that any person conducting a review under Fyffe would be aware of the Equal Opportunity complaint and it was open to the Tribunal to find that the probabilities were that Arnold was aware of the Equal Opportunity complaint. Counsel also submitted that it was open to the Tribunal to find that Arnold was equivocal and evasive in his answering of questions about the Equal Opportunity complaint. Ultimately it was said that it was a matter for the Tribunal having observed the witnesses and weighed the evidence to determine whether Arnold's knowledge was established. I accept the submissions of counsel for McKenna. [177] As to the question whether it was open to the Tribunal to find that the Cautioning Notice was upgraded to an Admonishment Notice because of the complaint under the Equal Opportunity Act 1995 (Question 38), counsel for McKenna submitted that it was open to the Tribunal to find that there had been an extraordinary departure from Page 34 of 52 State of Victoria v McKenna, [1999] VSC 310 normal processes. In particular, the reviewer set about marshalling further evidence with which to discipline McKenna without any attempt to hear or understand her side of the story. It was also put that it was open to the Tribunal to find that there had never been an occasion when a cautioning notice had been increased to an admonishment notice in the Police Force. Counsel submitted that it was open to the Tribunal to add, as it did, its consideration of the innocent explanation offered which was the only innocent explanation offered and which it rejected. Counsel again submitted that it must always be borne in mind that in assessing the evidence given in respect of this matter the Tribunal had the opportunity to form a view of the people concerned which would be vital to its assessment of the evidence. [178] In my view the decision was open to the Tribunal for the reasons advanced by counsel for McKenna . It was open to the Tribunal to take the view that what had occurred was not a genuine review of an act of discipline but a prosecution of a police officer with a view to punishment of that officer. It was open to the Tribunal to conclude that the reason for such action was the Equal Opportunity complaint. [179] Counsel for the appellants argued relevantly to question 39 that, in effect, the Tribunal's finding was that there was a conspiracy at the highest level to cause detriment to McKenna because of her Equal Opportunity complaint and that this was never put to Arnold and Fyffe and that there was nothing in the evidence to sustain the conclusion. In my view, the case mounted by the complainant inevitably involved the proposition that Fyffe and Arnold made their decisions substantially for the reason that they wished to subject McKenna to detriment because of her Equal Opportunity complaint. Whether they acted in concert in doing so is not to the point but it was plain that they had to meet a case that they were either acting in concert or individually in doing what they did and that the reason for their behaviour was the complaint. The case did not have to be put expressly to them. [180] As to question 43, plainly the Tribunal considered the denials of Arnold and Fyffe and rejected them. It was entitled to do so even though it did not have to discuss expressly its view as to whether they were witnesses of truth. The Tribunal did not have to articulate every reason. It is clear from the reasons, however, that the Tribunal took a very dim view of the actions of Arnold and Fyffe and that it rejected their denials. [181] As to the other questions, question 40 raises the Briginshaw point. "40. In reaching its conclusions on matters of fact, whether the Tribunal failed to seek to reach a reasonable degree of actual satisfaction having regard to the gravity of the matters alleged against the appellants and members of the Police Force." [182] While I have in general terms addressed this question, in relation to this complaint, as noted above, the Tribunal did not use language which reflects the language of Briginshaw. Nonetheless, it is plain from its lengthy and detailed reasons that the Tribunal anxiously considered the matter and there was nothing in my view in the reasons to suggest it had ignored what it had instructed itself at the outset about the importance of considering Bringinshaw's case. [183] The next question, question 41 concerns the adequacy of the reasons. 41. Whether, in relation to its finding that Insp Arnold recommended to Supt Fyffe that the cautioning notice should be upgraded to an admonishment because the respondent had made a complaint under the Equal Opportunity Act 1995, the Tribunal - a. failed to provide adequate reasons for those ultimate findings, b. failed to make adequate findings of the facts upon which those ultimate findings were based, c. failed to disclose the basis for the drawing of any inferences involved in those ultimate findings, or d. failed to expose the reasoning process which led to those ultimate findings. A specific gap alleged to exist in the reasoning process was the failure to expressly deal with the fact that Arnold and Fyffe had given evidence denying any intention to subject McKenna to detriment because of her Equal Opportunity complaint. As I have stated above in dealing with question 43, it is plain from the reasons that their explanations were rejected. In this instance, the reasons are far more detailed and the Tribunal's reasoning process is clearly laid out. It cannot be demonstrated that there were any of the failures listed in question 41. [184] The next question concerns onus of proof: "42. Whether the Tribunal implicitly imposed upon the appellants an onus of proof to establish to the Tribunal's satisfaction that the respondent's complaint under the Equal Opportunity Act 1995 was not the reason for the upgrading of the cautioning notice to an admonishment notice." Again, there is nothing in the language used by the Tribunal to support the appellant's argument under this question. There plainly being evidence, in my view, which could have been relied upon by the Tribunal to support its Page 35 of 52 State of Victoria v McKenna, [1999] VSC 310 conclusion it cannot be demonstrated from an absence of evidence that the Tribunal implicitly imposed the onus of proof on the appellants. [185] The next question to consider is question 46. "46. Whether the Tribunal purported to determine the matter by reference to considerations outside s97 of the Equal Opportunity Act 1995 by using its own standards, views and perspectives on the general issue of Police discipline and human relations rather than treating them as a given." The appellants submitted that the Tribunal embarked upon its own assessment of the disciplinary issues that arose and sought to introduce its own standards and views and perspectives on the issue. Counsel for McKenna submitted that the Tribunal was entitled to consider the way McKenna was treated by Arnold and the uniqueness of the increasing of the penalty. He submitted that the Tribunal had to form a view as to whether what occurred was so sufficiently out of the ordinary as to permit the drawing of an inference as to whether the Equal Opportunity complaint was a substantial reason for the increase in penalty. [186] I accept the argument of McKenna's counsel. In the sort of situation under consideration it is necessary for the Tribunal to examine the behaviour of the persons alleged to have victimised the complainant and to form a view as to the reasons for that behaviour. This will involve on occasions, as here, an attempt to understand the police disciplinary procedures but it also involves an understanding of human nature, human behaviour and standards in the community in weighing up and assessing the conduct and the explanations offered. To treat the disciplinary procedures and cultures of an organisation as a given and as unexaminable in any such dispute would defeat the Act. [187] The appellants also challenge the order of the Tribunal removing from the respondent's file the cautioning notice dated 27 February 1997 issued by Grist. (Question 48 in the Master's order) They submitted that McKenna did not allege that the issue of that notice or any circumstances associated with it constituted victimisation under the Act and did not claim that remedy. They submitted that this order was outside the powers of the Tribunal under s136 of the Act. This issue was conceded by McKenna. For the foregoing reasons, however, the appellants' challenge to the Tribunal's decision on the victimisation allegation fails. Sexual harassment of the claimant by Mansfield [188] The complaint made by McKenna was that during the week beginning 12 March 1995, the second appellant Mansfield sexually harassed her in breach of the legislation by "(a) grabbing the Complainant and pulling her on to his lap: (b) grabbing the Complainant, pulling her towards the holding cell and trying to lock her in the cell and (c) saying to the Complainant, 'come on Narelle, how about a head job". [189] It was common ground before the Tribunal that, for the week commencing Sunday 12 March 1995, McKenna was rostered to perform night shift work together with Senior Constable Mansfield, who was acting Sergeant on the shift, and Constable Wilson, who was the junior member of the three member shift. [190] The complainant's evidence as to the first incident, was that she had just started work in the evening and had walked into the watchhouse area where Mansfield was sitting on a chair parallel to the front counter. She said that she lent on to the bench, he grabbed her around the waist and pulled her on to his lap and put his arms around her chest and hugged her. She said that she broke free almost straight away stood up and pushed him and both he and the chair went over backwards on to the floor. She gave evidence about the impact of this on her - in particular, how she felt totally invaded and really horrible and very angry. [191] Her evidence as to the next incident was that it again happened at the start of the shift. She said that she walked into the watchhouse where Mansfield and Wilson were stationed. She said that as she entered Mansfield said to her "come on, Narelle, how about a head job". Her evidence was that she was disgusted that he would speak to her in that way, that she did not know what to do and was so shocked that she just walked out. [192] As to the third incident her evidence was that it again happened at the start of the shift. She said that she was in the watchhouse as were Mansfield and Wilson. She said that Mansfield "Grabbed me from behind and grabbed me around the shoulders and started dragging me towards the holding cell area and as we got - I was screaming, I was screaming, 'let me go'. At first I didn't know what he was doing and then I realised he was trying to drag me to the holding cell to lock me in there and I was very frightened then, when I realised what he was doing, I was very scared. I then started screaming and protesting more violently and trying to break free his grip and he got me to the holding cell and I was screaming and trying to elbow him because he had me from behind and I was very scared about what he was going to do when I got there, and as we got to the door of Page 36 of 52 State of Victoria v McKenna, [1999] VSC 310 the holding cell, I wedged my foot in the door and I couldn't break free from him, I was trying really hard to break free and I couldn't get away from him so I knew that wedging my foot was my last chance to break free so I wedged my foot in the door as he was trying to push me in the cell and somehow then as I got my foot wedged in the door was when I broke free from his grip and I elbowed him and I was just kicking him and as I was being dragged I was kicking him and when I did break free, I elbowed him and kicked him and then, that was when I slapped him across the face too, and I was really really upset and petrified of what was going to happen and if I did get locked in the cell." [193] McKenna also gave evidence of previous sexual advances by Mansfield to her and others. [194] She was cross-examined by counsel for the appellants on inconsistencies between her evidence and contemporaneous documents such as the running sheets and the divisional van roster for the week. She was also cross-examined about the record showing that she had during that week also gone out at night with Mansfield in the divisional van , he as driver and she as the observer. This was used to challenge her evidence about his actions. I note that, in re-examination, she said that she was afraid not to go out in the divisional van with him because he might do something to get her into trouble. She said that she was afraid that if she spoke out down at Bairnsdale about what was happening, and, in particular, about Mansfield, that they would in some way discipline her further. She described herself as blocking it out for the time being. [195] The Tribunal noted that she was uncertain about a number of matters: for example whether she had gone out in the van with Mansfield after one or more of the incidents and whether the third incident happened at the start of the shift or later and she had admitted to other problems about timing. The Tribunal then in its reasons made the following comment: "With regard to the manner in which the complainant gave her evidence the Tribunal was of the view that it had before it a witness who - although she may have in minor ways been confused, and have corrected and recorrected herself, about the timing and exact chronology of events - painted a picture of someone who had gone through a genuine series of traumatic events. This impression on the Tribunal was further borne out by the evidence of a counsellor whom she consulted more than two years after the event." [196] The Tribunal then referred to the evidence of a Ms Sherryl Smith a psychotherapist whom McKenna had consulted. [197] The Tribunal then referred to the evidence of Mansfield and his denial of the incidents alleged. It referred to cross-examination in the course of which he had been questioned about a statement he made to Chief Superintendent Ian Ladiges of C District who had investigated the complaint. The record indicated that he had told Ladiges that he had a strange sense of humour and that he was prepared to apologise to the complainant. He said that he offered to do so in case he had offended her in any way that he was not aware of. The Tribunal then quoted a section of the cross-examination in which he acknowledged that he knew that Ladiges was questioning him about allegations of sexual harassment. He was asked why he mentioned to Ladiges that he had a strange sense of humour, he replied "I can't recall whether I made a comment or whether he made comment". He said "I can't recall saying that" in answer to a question about whether it was possible that he had said something about intending it simply as a joke. He agreed it was possible in the sense that anything is possible. He was pressed also as to why he should have offered to apologise if he believed there was nothing he had done that was wrong. He again offered the explanation that if he had offended her in any way which he was unaware of he was prepared to apologise. He repeated he had no recollection of any reference by him to his sense of humour. [198] The Tribunal referred to his evidence in which he denied any of the alleged sexual advances towards police women. The Tribunal then commented "The Tribunal observes at this stage that in its view it did not have before it Mr Mansfield a witness who was credibly or genuinely dealing with a grave set of accusations which he was convinced were completely false or mistaken. Indeed, having been subjected to an internal investigation regarding those grave accusations his evidence was that he had little recollection of it. The Tribunal finds that Mr Mansfield was not a credible witness." Counsel for the appellants submitted that there was no support for this conclusion. They argued that there had been no inconsistencies in his evidence or prevarication in his manner and there was no apparent basis for the conclusion. As to the comment that "he had little recollection of it", ie of the internal investigation, Counsel submitted that, while the evidence indicated that he had no recollection of things put to him by Ladiges, there was no basis for concluding that he "had little recollection" of the interview with Ladiges. The issues raised here are dealt with in question 33: "33. Whether there was any evidence upon which it was open to the Tribunal to conclude that S/C Mansfield has little recollection of the internal investigation to which he was subject." Page 37 of 52 State of Victoria v McKenna, [1999] VSC 310 Counsel for McKenna submitted that the point raised required examination of the cross-examination of Mansfield and the passage referred to in summary above and quoted at length in the reasons of the Tribunal. Counsel submitted the Tribunal was not referring to particular allegations when it said that Mansfield's evidence was that "he had little recollection of it", it was referring to the investigation. [199] In my view, while the cross-examination quoted in the reasons reveals that Mansfield had difficulty recalling things put to him by Ladiges, it was open to the Tribunal to conclude that the substance of his evidence was that he had little recollection of the internal investigation. It was also, therefore, open to the Tribunal to find that he was not a credible witness. I note also that, in the written submissions provided by the appellants, reference was made to the Tribunal relying in part on his demeanour in reaching its conclusion. [200] Counsel for the appellants also criticised the Tribunal for making no finding as to whether Mansfield had said the things to the investigating officer that were put to him in cross-examination about his practice of saying things as a joke. Counsel submitted that the Tribunal had treated this issue as significant but made no finding as to whether he had said to Ladiges what was put to him in cross-examination. Counsel submitted that if the fact was that Mansfield had done what he did as a joke then there would be no basis for the Tribunal to find that Mansfield had made it reasonably appear to the complainant that her working conditions were contingent upon her acceptance of sexual advances or her toleration of persistent sexual suggestion or innuendo. It was argued that it was never put to Mansfield that if he did do and say what was alleged he did it in a manner other than as a joke. [201] In my view the Tribunal did not have to make findings on these matters. They were indirectly relevant and, on the key question of what occurred, it plainly preferred the evidence of McKenna. In any event it does not appear to me that any specific question has been ordered to be tried which addresses these issues. [202] The Tribunal then referred to the evidence of Constable Wilson. It described the evidence as "brief" and amounting to a flat denial of any of the incidents alleged by the complainant to have occurred. It noted that Wilson conceded that he may have been in other parts of the station. Counsel for the appellants made the point that the complainant's evidence, at least in chief, had Mr Wilson present on each occasion. The Tribunal stated: "Again the Tribunal did not think it had before it in Mr Wilson someone who was reacting credibly to a situation where he was alleged to have been present when events occurred that cast serious aspersions on one of his superior officers. For these reasons the Tribunal does not find his evidence sufficient to outweigh evidence given by the complainant." [203] The Tribunal then referred to the evidence of the witnesses, Senior Constable Little-Wood, Crossley, Ms Cameron, Ms Guest, Senior Constable Leanne Evans, and Constable Tanya Lansbury about their relations with Mansfield. The former Sergeant David Burge gave evidence that the complainant had spoken to him about the incidents a week, a day or a month after the incidents. [204] The Tribunal then referred to the evidence of Chief Superintendent Ladiges and his investigation of the matter. He said that he spoke to Burge who confirmed that the complainant had confided in him that Mansfield had in fact pulled her onto his lap. His recollection was that Burge said that "it was no big deal" and had left it at that. He referred to speaking to Senior Constable Collins who said that the complainant was very sad and unhappy with the world at the time and he had no recollection of her relating the incident with Mansfield to him. The Tribunal commented that Ladiges' report did not provide any further useful evidence to the Tribunal. It concluded its reference to his evidence with a reference to his "file overview". Ladiges offered to work with the EEO office to resolve some of the outstanding issues. The Tribunal then commented: "The Tribunal accepts the broad version of events detailed by the complainant. Applying the standard of proof required in cases of this kind, where serious allegations have been made against a person that, if found to be true, could have far reaching consequences for a respondent with regard to their professional reputation or standing in the community, the Tribunal finds, adopting the test applied Dixon J in Briginshaw, that it is actually persuaded to its reasonable satisfaction of the occurrence of the events alleged to have taken place during the night shift that started on 12 March 1995." [205] The Tribunal went on to say: "The Tribunal is further satisfied that the second respondent, as the acting sergeant in charge of the night shift, and, therefore, the supervisor of the complainant, made it reasonably appear to the complainant (she tried to keep away from the second respondent but did not know how to assert herself or what to do - p173 of the transcript) that her working conditions were contingent upon her acceptance of his sexual advances or toleration of his persistent sexual suggestions or innuendo. Applying the test used by Winneke P in Spencer v Dowling the Tribunal finds first that the second respondent's conduct reasonably induced in the mind of the complainant that the maintenance of the working conditions were Page 38 of 52 State of Victoria v McKenna, [1999] VSC 310 dependent upon the acceptance of his sexual advances. Second, the Tribunal finds that the second respondent's conduct made it appear to the complainant that the consequences were intended and that a reasonable person in her position would have had a similar apprehension. Third the Tribunal finds that the conduct of the second respondent reasonably induced in the complainant an apprehension of future consequences. The Tribunal therefore finds this part of the complaint proved." [206] The appellants have raised seven alleged questions of law arising out of the reasons of the Tribunal. The first challenged the adequacy of the reasons in dealing with the evidence of Wilson. "30. Whether the Tribunal, in relation to the evidence of C Wilson, failed to give any reasons, alternatively adequate reasons, and/or failed in its duty to act judicially, in the following resects: a. by failing to make essential findings of fact such as whether C Wilson was present at the relevant times and whether he had any recollection of the matters alleged by the respondent having occurred, b. by failing clearly to accept or reject that evidence and/or, to the extent that it rejected that evidence, by failing to disclose the basis upon which it did so, c. by dealing with the evidence of C Wilson merely by observing that in C Wilson, the Tribunal did not have before it someone who "was reacting credibly to a situation where he was alleged to have been present when events occurred that cast serious aspersions on one of his superior officers", and that his evidence was not "sufficient to outweigh evidence given by" the respondent, d. by finding (to the extent that it did find) that C Wilson was not a credible witness, notwithstanding that - i. the respondent's unwavering evidence was that C Wilson was present on each occasion when the conduct she alleged took place and on the occasion when the comment she alleged was made, ii. C Wilson swore that he neither saw any conduct of the kind alleged nor heard any comment of the kind alleged, and iii. no party before the Tribunal submitted that C Wilson was not a credible witness." [207] Counsel for the appellants submitted that the critical part of the complainant's evidence was that after each incident she tried to keep away from Mansfield and either spoke to Wilson or went out in the divisional van with him. Wilson's evidence then became critical and counsel submitted that his denials of her evidence and the running sheets contradicted her evidence but these matters were not dealt with directly by the Tribunal in their reasons. [208] Counsel for McKenna submitted that the appellants were asking the Tribunal to do more than give chapter and verse after the Tribunal had dealt with enough issues to determine the matter. It assessed McKenna to be credible on the essential facts and found Mansfield and Wilson not to be. [209] I accept the submissions of counsel for McKenna as being basically sound. It was not, for example, necessary to make an express finding as to whether Wilson was present at the relevant times in light of its findings as to the credibility of McKenna and Wilson and the finding that the broad version of events detailed by McKenna was true. It was not necessary to go any further. It did not have to deal with every piece of evidence in its reasons. It said enough in relation to Wilson to indicate that, in its mind, he lacked credibility. [210] The points raised in para(d)(i) and para(d)(ii) of question 30 are no more than an attempt to debate the merits of the case and whether in fact Wilson's evidence should have been accepted. That is not a question in these proceedings. It was open to the Tribunal to find that McKenna was mistaken in saying that Wilson was present. It was open to the Tribunal to decline to accept Wilson's evidence that he neither saw any of the alleged conduct or heard any comment. It also was not necessary for the Tribunal to resolve all such issues once it had formed the view that it had concluded that it had credible testimony which it accepted that the events had occurred. It must be remembered that the Tribunal is not required to identify everything that occurred. [211] As to the final point that no party had submitted that Wilson was not a credible witness, counsel for the appellant submitted that in cross-examination it was not put to Wilson that he was not telling the truth. The only suggestion that was put to Wilson was inconsistent with the complainant's evidence, namely, that he may not have been immediately present when some or all of the incidents occurred. This issue was also raised in final submissions to the Tribunal by counsel for the complainant. Counsel further submitted that while the language of the Tribunal was "somewhat coy", the Tribunal in effect felt that he was lying. Counsel submitted that there was no basis for such a finding. Counsel submitted that if the Tribunal was rejecting Wilson's evidence it should have done so expressly instead of making unsatisfactory comments about the credibility of his reactions in the situation. Counsel submitted that he directly answered every question that was put to him without equivocation. It was said Page 39 of 52 State of Victoria v McKenna, [1999] VSC 310 that there was, therefore, a gap, a critical gap, in the reasoning of the Tribunal. (Stojkovski v Fitzgerald [1989] WAR 328, 340). [212] It is true that the main attack on Wilson by counsel for McKenna had been to suggest that perhaps he wasn't present. The Tribunal, however, had to determine the credibility of the witnesses before it. Coming to the conclusion as it did that Wilson was not a credible witness, it was its duty to proceed with its fact finding task on that basis. In my view the Tribunal said enough to explain its reasons. It left no real gaps. It chose language which dealt gently with Wilson's credibility. [213] The next question to consider is question 31. "31. Whether the Tribunal, in relation to the evidence of the respondent, failed to give any reasons, alternatively adequate reasons, and/or failed in its duty to act judicially, in the following respects: a. by dismissing major contradictions in the respondent's evidence as minor confusion and as mere corrections and re-corrections on matters of timing and exact chronology, b. by accepting the broad version of events detailed by the respondent without dealing with aspects of her evidence, to which she adhered throughout, that were on any view inconsistent with the available objective documentary evidence as to the movements, actions and whereabouts of the respondent of S/C Mansfield and of C Wilson on the occasions in question, c. by failing to take account of the respects in which and the extent to which the respondent had been shown not to be a witness of truth, alternatively failed to consider whether there were any occasions upon which she had been shown not to be a witness of truth and, if there were any, the significance thereof to the Tribunal's determination." [214] Counsel for the appellants submitted that there was a substantial body of objective evidence which rendered the complainant's allegations highly improbable. It was submitted that none of this was dealt with by the Tribunal in its reasons and it undertook no examination of the probabilities based upon objective evidence available to it. Reference was made to an exhibit analysing the evidence. [215] Counsel for McKenna submitted that the Tribunal was entitled to assess the witnesses and to hold that the contradictions in McKenna's evidence were minor confusions and mere corrections and re-corrections as to timing and to chronology. Counsel submitted that it was not necessary for the Tribunal to deal with all the matters that are listed in question 31. [216] I agree that it was a matter for the Tribunal to determine how much significance it should attach to the contradictions and confusions that emerged in McKenna's evidence about the sequence of events and the timing and the like and attacks on her credibility. It was, however, open to it to accept her broad version of events in light of its assessment of her, Mansfield and Wilson as witnesses on the issues. There is, in my view, no basis for saying that the Tribunal failed to take into account any situations where it had been demonstrated that she was not giving correct evidence. [217] Counsel for the appellant also submitted that the Tribunal gave no more than lip service to Briginshaw's case question 34. Counsel submitted that the police evidence in the running sheets provided a substantial body of evidence which showed that the events could not have happened as the complainant described them. [218] As the Tribunal expressly referred to the test in Briginshaw in its reasons on this complaint, the appellants are driven to arguing that the Tribunal only gave lip service to the test. How that can be sustained is not apparent to me. The decision was plainly open, it having decided that McKenna should be believed and Mansfield and Wilson not believed. It would have been a misapplication of the test in Briginshaw to find that the matter had not been established to the reasonable satisfaction of the Tribunal, notwithstanding the seriousness of the allegation. [219] I turn to a question addressed to the inadequacy of the findings by the Tribunal. I refer to question 32. It provides: "32. Whether it was open to the Tribunal, as a matter of law, to make general findings in the way that it did against S/C Mansfield notwithstanding that it did not consider whether the actions alleged of S/C Mansfield had in fact occurred, that is to say, whether a. he had grabbed the respondent and pulled her onto his lap, b. he had grabbed the respondent and pulled her towards a holding cell, trying to lock her in the cell, and c. he had said to her "Come on Narelle, how about a head job?" In my view this question assumes an obligation on the part of the Tribunal to go to inordinate lengths in giving its reasons. The question assumes that the Tribunal did not consider whether these specific events complained of Page 40 of 52 State of Victoria v McKenna, [1999] VSC 310 occurred. It is plain from the reasons of the Tribunal that it did and it was satisfied that the events complained of occurred. The Tribunal itself stated: "The Tribunal accepts the broad version of events detailed by the complainant." It is clear enough from that statement that the Tribunal found that each of the alleged events occurred. [220] The next question to consider is question 35 which relates to the third incident - the dragging to the cell - and whether what occurred was simply an assault and not a sexual advance. "35. Whether it was open to the Tribunal, as a matter of law, to uphold the allegation of sexual harassment contrary to the Equal Opportunity Act 1984 notwithstanding that the Tribunal failed to consider whether the conduct in which S/C Mansfield was found to have engaged - to the extent that any such finding was made - constituted sexual advances or persistent sexual suggestions or innuendo." [221] Counsel for the appellants submitted that the third incident, was simply an assault and not a "sexual advance" within the meaning of the Act. Counsel submitted that neither the complainant nor anyone else gave any evidence that this conduct reasonably appeared to be or was perceived by the respondent to be a sexual advance. [222] Counsel for McKenna submitted that unwanted touching may comprise sexual harassment citing Burns [1985] VR 317 323 and Spencer v Darling (unreported, O'Bryan J 26 October 1994 at 17). Counsel submitted that, in any event, the incident had to be considered as part of a course of conduct which was overtly sexual. Finally, counsel submitted that the appellants had not asked the Tribunal to deal with the three incidents separately or discretely and made no submission to the Tribunal that the episode of the dragging of the respondent to the cell was not a sexual episode. [223] In my view there is a degree of artificiality in the issue sought to be raised here by the appellants. There was some discussion before me as to what constitutes a sexual advance. Plainly the circumstances are highly relevant and in this instance the matter has to be considered on the basis that the Tribunal was satisfied that the other two incidents occurred, the dragging to the cell being the third. In that context, it was plainly open to the Tribunal to construe that assault as a sexual assault or advance. In addition, the failure to make any submissions to the Tribunal that it was not a sexual episode entitled the Tribunal to regard the issue as conceded. [224] The final question to consider is question 36. It is as follows: "36. Whether the finding by the Tribunal that S/C Mansfield made it reasonably appear to the respondent that her working conditions were contingent upon her acceptance of his sexual advances or her toleration of his persistent sexual suggestions or innuendo was open, alternatively reasonably open, on the evidence." [225] Counsel for the appellants submitted that, while the Tribunal purported to apply the analysis of Winneke P in Spencer v Dowling, there was no evidence to support the conclusion that Mansfield's conduct had anything to do with the respondent's working conditions or that the respondent in fact apprehended that her working conditions were contingent upon acceptance of his advances, if advances they were. Counsel accepted that technically Mansfield was the respondent's supervisor but he was not part of station command at Bairnsdale and did not hold the substantive rank of Sergeant. Counsel submitted that there was nothing in the evidence which would suggest that he had any influence over her working conditions. Counsel also submitted that the conditions in question were never identified. It was put that she gave no evidence that she apprehended that the working conditions were contingent on acceptance. It was said that she in fact gave evidence that it was a matter of choice for each of them as to whether they went in the divisional van or not. It was put that nothing Mansfield said or did suggested that the working conditions were dependent on acceptance of his advances. Counsel submitted that it was not enough to show that her working conditions were affected in the sense that she kept clear - which was her evidence. [226] Counsel for McKenna submitted firstly that McKenna did give evidence which was sufficient for the Tribunal to find that it reasonably appeared to her that her working conditions were contingent on her acceptance of Mansfield's sexual advances or toleration of his persistent sexual suggestion or innuendo. He referred to her evidence about her fear as to what would happen if she complained and how she blocked out the incidents and tried to do her work, which involved having to continue working with Mansfield. In particular, she was afraid not to do what Mansfield required her to do - for example, going out in the van. Counsel further submitted that no submission was made at the Tribunal by the appellants that there was no such reasonable apprehension. She was not cross-examined about her fears in relation to her working conditions. [227] It may be said that while it was open on the evidence to say that there was a choice as to whether to go in the divisional van or not, that was a choice of a limited nature and on the evidence that McKenna gave it was open to the Tribunal to find that she had felt that she had to put up with what had occurred to her at different times or get into more trouble. I accept the submissions that there was evidence to support the conclusion. [228] In any event, this issue was not raised in the particulars of defence that were filed. Further, no submission was put to the Tribunal and no challenge was made to McKenna in her evidence to suggest that the conduct of Page 41 of 52 State of Victoria v McKenna, [1999] VSC 310 Mansfield had nothing to do with the respondent's working conditions or that she did not apprehend that her working conditions were in some way contingent upon her accepting his conduct. In those circumstances it was open to the Tribunal to proceed on the basis that this was not an issue that was contested. To argue otherwise would be to require the Tribunal to second guess all points that might be an issue and rule upon them. That should not be required. In light of her evidence and the conduct of the case for the present appellants, it was open to the Tribunal to conclude that the question was not in issue. [229] As a result it is not necessary to consider the alternative argument advanced for McKenna. Counsel submitted that it was open to McKenna to support the decision on any basis that was open at the original hearing (Preston Ice and Cool Stores Pty Ltd v Hawkins (1955) BLR 89). The alternative argument was that if a finding of sexual harassment was not open then a finding of discrimination on the grounds of sex was open on the basis that the respondent was entitled to quiet employment. Reliance was placed on Equal Opportunity Board v Burns [1985] VR 317 at 322 and Aldridge v Booth (1988) 81 ALR 1,17. A submission to that effect was put to the Tribunal but was not adjudicated upon by the Tribunal. Appeal as to complaints - conclusion [230] In light of the foregoing I am persuaded that no error has been shown such as would constitute error of law vitiating the decisions made by the Tribunal on the issues affecting liability of the appellants in these matters. [231] It is necessary then to turn to the issues raised in relation to the assessment of compensation. Appeal as to compensation [232] McKenna claimed compensation and set out, so far as relevant, the following particulars of her claim in her amended consolidated particulars of complaint: "The complainant has suffered stress, anxiety, hurt, humiliation, loss of self esteem, loss of enjoyment of her work and loss of career opportunity. The complainant was unable to work for three months during May, June and July 1995 and for a further period commencing on or about 22 February 1997 and continuing until on or about 1 August 1997. Applications by the complainant for transfers out of Bairnsdale police station were denied by reason of the matters referred to in para25, para28 and para29. The complainant incurred expenses in relation to appeals against the denial of her applications for transfer. The complainant transferred from Bairnsdale to Warragul and incurred expenses by reason of the transfer." [233] The Tribunal gave lengthy reasons analysing the claim for compensation. In those reasons it detailed McKenna's absences from work, the breakdowns she experienced and other aspects of her life which she claimed were adversely affected by the events complained of by her. The Tribunal summarised the expert testimony called by the parties. The Tribunal recorded Dr Lawry the Police Doctor as describing McKenna in early March 1997 as being in a state of "extreme anxiety, extreme stress and extreme depression". It recorded that when he saw her again on 27 March 1997 she had somewhat improved but continued to exhibit symptoms of stress and was significantly depressed although there were no symptoms of paranoia It was in the week prior to that that she had attempted a drug overdose. The Tribunal then referred to the evidence of Ms Leni Foster a psychologist who had been consulted by and had treated McKenna in 1996 and in 1997. Amongst other things the Tribunal recorded that her diagnosis was that McKenna had work related stress caused directly by events at her work place. She had recorded mixed anxiety and depressed mood. She described the symptoms as chronic. After further references to cross-examination and re-examination of Ms Foster, the Tribunal then referred to the evidence of Ms Sherryl Smith a Psychotherapist. The Tribunal noted that she told the Tribunal that in the past five and a half years her practice concerned mainly police officers and their partners and families with regard to work related issues. She said that a "good 50%" of the policewomen that came to her for counselling would express involvement in some form of sexual harassment. The Tribunal summarised her evidence as follows: "Having worked with a range of other organisations she said that what highlighted the difference between a paramilitary organisation like the Police Force and other organisations was a far greater incidence of sexual harassment and sexual discrimination in the force than any other organisation she had worked with. This was an observation shared by others, she said, and quoted from publications in regard to resistance in the Police Force to the expansion of the role of women in policing and the difficulty women have in doing something about sexual harassment because of a prevailing culture that says 'that if you dob, you are a dog'. Ms Smith said that the tyranny of silence was the best way to describe why women do not come forward and report instances of sexual harassment or even ask for help and quoted from another publication 'the dog or whistle blower is an outcast among the police. Secrecy is loyalty. Secrecy is solidarity'. Based on her observations of police culture she said women were designated by their colleagues in a de-feminising way or they were de-professionalised. If the latter, they were given tasks of lesser importance, if the former they are expected to be one of the boys swearing as Page 42 of 52 State of Victoria v McKenna, [1999] VSC 310 profoundly as their male colleagues. As a result women are very reluctant to report any incidents because that is seen as letting the team down and goes against the code of silence that male colleagues insist on. They are reluctant to report, Ms Smith said, and fear the reprisals they have seen happen to many of their colleagues." The Tribunal noted that her assessment was that McKenna had "symptoms consistent with adjustment disorder with mixed anxiety and depressed mood" caused by the incidents that McKenna reported to her as occurring at Bairnsdale and Warragul stations -"specifically the sexual harassment and gender based discrimination she experienced". She described the complainant as having described ". . . feeling continually intimidated by and fearful of particular male superiors. Being constantly uptight at work she would be depressed and teary at home, feeling hopeless, powerless with no control over the situation which in turn placed great pressure on her de-facto relationship with Mr Minos, causing it to end." She described the anxiety depressive cycle becoming acute on 4 June 1997 when McKenna took an overdose of valium. [234] After further references to Ms Smith's cross-examination, the Tribunal then referred to the evidence of Dr Michael Epstein a psychiatrist. He prepared a report on 27 October 1997. The opinion that he then expressed was that McKenna suffered from "a generalised anxiety disorder associated with panic disorder and agoraphobia with features of depression" much of which had been significantly contributed to by problems experienced at Bairnsdale and "to some extent" at Warragul. He indicated in cross-examination that the term "adjustment disorder" referred to symptoms which are the result of a stressor. They will usually settle within six months of the cessation of the stressor. Its use, he said, was inappropriate in this case. The Tribunal recorded that it asked Dr Epstein whether any significance would be attached to a diagnosis on the one hand of anxiety disorder and, on the other, adjustment disorder. His response was that it made no difference as far as treatment was concerned except that in the adjustment disorder situation it might be useful to recognise the stressor as the primary factor and to try and ameliorate that stressor. He said the term "adjustment disorder" was developed to describe symptoms that arose as a response to an environmental situation that was going to be short term. For long term problems another term might be more appropriate. [235] The Tribunal then referred to the evidence of Dr Klepfisz a consultant psychiatrist engaged by the appellants. His opinion was that McKenna did not have a present or past psychiatric disorder and that there was no psychiatric obstacle to her working full time. His opinion was that her need to test her allegations legally had become a "severe obsessive preoccupation with her and that her ideation was paranoid in nature". He said that she distorted her perception of people and their motives and as a result of this mistrust had become "anxious and depressed". The Tribunal noted that he said that she displayed "evidence of mild anxiety, depression and a marked personality disturbance with paranoid features which he said were not a work related situation". The Tribunal went on: "Dr Klepfisz added that employment was not a significant contributing factor but rather that the complainants distortion of perception created anxiety and depression. He spoke of her preoccupation with paranoid ideas making it difficult for her to focus or concentrate on other things. Her distortion of perception 'to a point of being paranoid' was the main impediment to her return to work." The Tribunal reported that his view was that he did not expect her condition to improve even if the case before the Tribunal was settled. He thought her treatment at that stage was inappropriate. The Tribunal then noted Dr Klepfisz's close working relationship with WorkCover insurers and that the letter was written with a WorkCover claim in mind. Dr Klepfisz agreed with Ms Foster that McKenna suffered anxiety and depression but differed over the extent of the psychiatric disturbance. In disagreeing with Ms Foster about the work connection he could not say "with certainty that the events did not occur but that the way the complainant described them as part of a vague general conspiracy directed against her, suggests(ed) paranoid ideation". In his letter of advice he had apparently noted, as recorded by the Tribunal, that if the Tribunal found in favour of McKenna then one would have to "consider the contribution from work". The Tribunal summarised his views however as being that whether that occurred or not there was evidence of "paranoid ideation" above and beyond any harassment. In further evidence before the Tribunal he again emphasised what he saw as paranoid features. He is recorded as saying: ". . . the way she perceived the world was in a paranoid manner, as if there was a global conspiracy. He said that people with a paranoid personality disorder tended to be mistrustful, to have difficulty in relationships, whether at Page 43 of 52 State of Victoria v McKenna, [1999] VSC 310 work or socially, and reacted badly to criticism. His information from her which did not mention panic attacks did not give him a history consistent with panic disorder." He is recorded as expressing the view that the clinical impact on the patient was not significantly different whether the patient had an anxiety disorder or adjustment disorder although the former required more complex and long term treatment. [236] After further reference to cross-examination the Tribunal, inter alia, noted that his impression was that McKenna saw some kind of global conspiracy, a network of people going up to the top that would deliberately try and run her out of the police. The Tribunal noted, however, that he maintained that it was feasible that when she came to Bairnsdale she had a personality disorder of some degree which a range of stresses could aggravate. Accumulative stress disorders, he conceded, over a period of time could progressively sensitise an individual. [237] After referring to further evidence given by Dr Klepfisz the Tribunal then referred to further evidence given by Dr Epstein who was recalled. He was recalled in response to Dr Klepfisz's evidence. Amongst other things he was recorded as saying that McKenna gave him "a very clear history of the development of panic disorder, which he said was characterised by recurrent panic attacks associated with agoraphobia." [238] His view was that this appeared to have occurred in the context of her employment. He then referred to Dr Kelpfisz's opinion that McKenna suffered from "a marked personality disturbance with paranoid features". He gave evidence as to the nature of personality disorders and in particular the enduring pattern that is pervasive and inflexible and has an onset in adolescence or early adulthood. Amongst other things, he disagreed with Dr Klepfisz in that in his view McKenna did not display any evidence of paranoid behaviour or ideation during his interview. He gave examples and noted his concern about the loose use of the term paranoia. [239] The Tribunal then referred to the cross-examination of Dr Epstein by counsel for the appellants in relation to the criteria he relied upon in expressing the earlier opinions. He maintained, however, that he disagreed with Dr Klepfisz's opinion that there was evidence of paranoid ideation. The Tribunal recorded further criticisms of Dr Klepfitsz's approach by Epstein. On concluding its analysis of further evidence of Epstein the Tribunal recorded the following findings: "The Tribunal is satisfied on the evidence before it that substantially as a result of the events in Bairnsdale contained in complaint items 4.2.4, 4.2.5, 4.2.6, 4.2.7 and 4.2.8 [the discrimination complaints]. • the complainant suffered from a generalised anxiety disorder associated with panic disorder and agoraphobia with features of depression or alternatively from an adjustment disorder with anxiety and depressed mood - the Tribunal accepts the evidence before it that in practical terms there is very little difference between the symptoms suffered or the effects. • that either condition was extended and aggravated by the events in Warragul contained in complaint item 4.4 [the victimisation complaint]. • that either condition substantially limited her work capacity from March to August 1995 and from February to August 1997; • that either condition substantially contributed to her state of mind and her subsequent actions leading to her admission to Dandenong Hospital on 4 June 1997 The Tribunal does not find that the complainant suffered from a personality disorder with paranoid features. It observes however that if it had been inclined to so find, it would nevertheless have found that the range of stresses the complainant suffered as a result of the events contained in items 4.2.4 - 8 and 4.4 would have substantially aggravated such a disorder. [240] Thus, as the Tribunal noted, it broadly accepted the medical conclusions drawn by Dr Epstein and Ms Foster. At the same time it expressed the view that even if one accepted the evidence of Dr Klepfitzs the situation was that the matters complained of had substantially aggravated such disorder as he claimed to be present. After considering submissions as to quantum the Tribunal recorded the following decision: "The Tribunal accordingly awards the complainant general damages of one hundred and twenty five thousand dollars ($125,000) to compensate her for the effects of stress on her private and working life and for pain and suffering. The Tribunal is not able to separate out the various elements of the unlawful treatment the complainant received at Bairnsdale and Warragul stations in arriving at this sum nor has the Tribunal found it necessary, in view Page 44 of 52 State of Victoria v McKenna, [1999] VSC 310 of the evidence before it and its findings as to loss and damage, to separately weigh the impact any events in the private life of the complainant may have had as contributing stressors in causing her medical condition." In its conclusions the Tribunal noted the following: "In making for what is this jurisdiction a relatively large award of general damages the Tribunal bore in mind that the unlawful actions were very serious in nature and - except for the instances of sexual harassment in complaint item 4.3 - that they were initiated, supported or endorsed as high levels in the district hierarchy." [241] The appellants raised several specific matters which it alleges constituted errors of law. [242] The first matters raised concerned the decision of the Tribunal not to make available to the appellants hospital records that they had been subpoenaed through the Tribunal. The appellant's subpoena was issued on 8 December 1997 and sought: "All clinical notes, records, statements and memoranda concerning Narelle McKenna (admitted on or about 4 June 1997)." The relevant questions on this appeal are: "49. Whether the Tribunal erred in law in excluding the appellants from access to the documents produced under summons by the Dandenong Hospital by - a. misconstruing s141 of the Health Services Act 1988, b. misapplying that section to the matter before the Tribunal, and c. holding that PQ v Australian Red Cross Society [1992] VR 19 had application to the question whether access should be granted. 50. Alternatively, assuming the Tribunal to have made no error in excluding the appellants' counsel from access to documents produced under summons by the Dandenong Hospital whether the Tribunal breached the rules of natural justice in relying upon the respondent's evidence as to the circumstances which led to her admission to that Hospital without the appellants having the access which they sought." The Tribunal held amongst other things that the medical conditions from which the complainant suffered which were substantially the result of the actions by the appellants of which she complained "substantially contributed to her state of mind and her subsequent actions leading to her admission to Dandenong hospital on 4 June 1997". [243] Counsel for McKenna had argued before the Tribunal that the hospital file was subject to privilege. Counsel for the appellants had submitted to the Tribunal that admissions to the Dandenong hospital were highly relevant and the records relating to that admission should be made available. The parties made submissions to the Tribunal in writing and those submissions concentrated in large part on the operation of s28 of the Evidence Act 1958. [244] The Tribunal did not give a ruling on the claim of privilege during the hearing but at the conclusion of the hearing indicated, that it would prepare a ruling in due course and notify the parties through the registrar. The Tribunal stated: "If the parties do find that they wish to apply to the Tribunal, leave will be given to the parties to apply." The Tribunal made its ruling about the submissions on 5 May 1998 but the parties were not notified until the Tribunal's final orders were made. The Tribunal ruled against the appellants. [245] The Tribunal noted in its reasons that on 9 December 1997 the documents having been produced to the Registrar were made available by the Registrar for perusal by the parties. They were used by junior counsel for the State of Victoria and other respondents below in cross examination of Sherryl Smith. It noted that counsel for McKenna had not been aware of the delivery of the hospital file to the Tribunal and had not had an opportunity to peruse the documents. Counsel took objection to their possession by respondent's counsel and as a result the Tribunal took possession of the documents. Directions were then given for the submissions of the parties to deal with the question of access to the file. Thus the issue for determination was not at that point one of evidence and its admissibility. [246] The Tribunal referred to the arguments advanced by both sides of the dispute in respect of s28 (2) of the Evidence Act. It concluded that it was not necessary to reach a decision as to the application of that section because of the operation of s141 of the Health Services Act 1988 and in particular s141(2) of that Act and the case of P Q v Australian Red Cross Society [1992] 1 VR 19. The section provided: Page 45 of 52 State of Victoria v McKenna, [1999] VSC 310 "141. Confidentiality (2) A person to whom the section applies must not, except to the extent necessary - (a) to carry out functions under this or any other Act; (b) to exercise powers under this or any other Act in relation to a relevant health service; or (c) to give information he or she is expressly authorised, permitted or required to give under this or any other Act - give to any other person, whether directly or indirectly any information acquired by reason of being a person to whom this section applies if a person who is or has been a patient in, or has received health services from, a relevant health service could be identified from that information. Penalty: 50 penalty units. (3) Subs(2) does not apply - (a) to the giving of information with the prior consent of the person to whom it relates or, if that persons has died, with the consent of the senior available next of kin of that person; or (b) to the giving of information to a court in the course of criminal proceedings;" (c) (4) It was common ground that the person subpoenaed was a person to whom the section applied. [247] Before me, counsel for the appellants submitted that the Tribunal misapplied s141(2) of the Health Services Act 1988. Counsel for the appellants submitted that PQ v Australian Red Cross Society in fact supported the position contended for by the appellants. [248] Counsel for the appellants relied upon a passage in the judgment of McGarvie Jin P Q v Australian Red Cross Society [1992] VR 19 in support of an argument that because the identity of the patient was already known to the Tribunal, the hospital files containing confidential details relating to her admission and treatment no longer benefited from the protection afforded by the section. It was put that the identity of McKenna was not an issue because she had already given evidence of her admission for treatment in the Dandenong hospital over the relevant period. The passage in McGarvie J's reasons at p29 is as follows: "I consider that the practical effect of s141 (2) is that a person must not give any information acquired in respect of a patient as an employee of a relevant health service unless the information can be given without it being recognised who was the subject of the information. Put in another way, a person is not entitled to give any item of acquired information if from the whole of the acquired information which is given the patient could be identified . . ." Emphasising the last words, the appellants submitted that identity has already been established. [249] In essence this construction was advanced in front of the Tribunal and the Tribunal rejected it. The Tribunal stated: "If the Tribunal were to adopt that interpretation it would mean that in every case in which it was publicly known, or conceded, that a person had been admitted to a hospital on a particular day, the confidential patient files relating to that person could be produced with impunity by hospital staff because the only confidential issue addressed by s141(2), the name or identity of the person concerned, was no longer a question. That narrow view would make a mockery of the protection intended to be conferred by the Health Services Act patient information whether obtained by a medical practitioner or by the staff of the hospital." In my view this construction is supported by close consideration of the reasons advanced by McGarvie J. He stated that the question which he had to consider was the following: ". . . if steps taken have in breach of s141(2) obtained information by way of evidence from which a patient has been identified, does that then permit an employee of the health service to give other information in relation to that identified patient? Page 46 of 52 State of Victoria v McKenna, [1999] VSC 310 It would seem to be basic to the policy that underlies s141 of the Health Services Act . . . that the purpose is to prevent information being revealed which could be embarrassing, to say the least to the patient in question. . . . To render a protection of confidentiality to a patient real, what needs to be protected from disclosure in the vast majority of cases is the information that has been obtained in respect of the patient not merely the information that the person was a patient. In my opinion, s141(2) is not to be read as operating only in respect of particular separate components of the information relating to a patient. It does not follow that if a person to whom the section applies has in breach of subs(2) identified one who is or has been a patient of the relevant health service, the provision has no further application and it is then open to the person further to identify the patient as having had a particular condition or showed a particular state on examination or given a particular confidence to a medical practitioner or other employee." The passage relied upon by the counsel for the appellants then appeared and his Honour then concluded: "It seems to me to adopt a different interpretation of the section would be to erode it seriously and to encourage devices by which the apparent purpose of the section could be bypassed." [250] McGarvie J refers to the identity of the patient having been revealed in breach of the sub-section. That did not occur in this instance. The underlying argument, however, does not appear to me to depend upon that issue. Rather his Honour was concerned that the objective of the section is to avoid the disclosure of the identity and the medical information without the consent of the patient. Applying his Honour's reasoning it appears to me that the Tribunal was correct in its conclusion. In view of the fact that that the decision in PQ was handed down over seven years ago and the legislation has not been altered, it would be inappropriate for me to question the reasoning. [251] In view of my conclusions as to the application of s141, I do not propose to address the issues raised in relation to s28(2) by the parties. [252] As to question 50, assuming that the Tribunal made no error in denying access to the documents, there could be no breach of natural justice in proceeding as it did. [253] The next issue raised is the next finding that appears in the reasons namely: "That either condition was extended and aggravated by the events in Warragul contained in complaint item 4.4" Counsel submitted that this finding indicated that compensation was given in respect of the extension and aggravation of the condition caused by all of the events in Warragul. Counsel submitted that it was not open to the Tribunal to award damages for all of the events because not all of the events constituted conduct in breach of the Act. Counsel submitted that the quoted passage included the conduct of Sergeant Smith on the 13th January and the 29th January and not just the upgrading of the punishment. Thus the Tribunal had awarded compensation for conduct which was not unlawful under the Act. This issue is raised in question 51 in the following terms: "Whether in its assessment of the loss suffered by the respondent, the Tribunal included loss suffered as a result of any events which were not the subject of any complaint, namely 'the events' in Warragul contained in complaint item 4.4." In my view there is nothing in the material to warrant the conclusion that the reference to "the events in Warragul contained in complaint item 4.4" was intended to mean anything more than a reference to the review and in the elevating of the Cautioning Notice to an Admonishment Notice. [254] The final matter raised to challenge the award of compensation is that the Tribunal made no attempt to assess the impact of events in her private life upon her medical condition. Counsel draw attention to the evidence which showed that her private life during the relevant period was traumatic. In particular, I was referred to the details that emerged in Doctor Lawry's evidence for example, her involvement in an inquest into the death of a prisoner who hanged himself in the cell when she was watchhouse keeper. This occurred after the alleged Mansfield incidents. Reference was also made to other personal problems notably the breakdown of the two relationships during the relevant period. Counsel submitted that the Tribunal should have weighed the impact of those circumstances separately. They argued that the Tribunal's only power under s126 of the Act was to compensate for loss damage or injury suffered "in consequence of a contravention of the Act". [255] As noted above what the Tribunal said was: "The Tribunal is not able to separate out the various elements of the unlawful treatment the complainant received at Bairnsdale and Warragul stations in arriving at this sum ($125,000) nor has the Tribunal found it necessary, in view Page 47 of 52 State of Victoria v McKenna, [1999] VSC 310 of the evidence before it and its findings as to loss and damage, to separately weigh the impact any events in the private life of the complainant may have had as contributing stressors in causing her medical condition." [256] These arguments are relevant to the following question: "54. Whether the Tribunal based its assessment of damages in part upon the impact of events in the respondent's private life rather than confining its award of compensation to loss, damage or injury suffered in consequence of contraventions of the Equal Opportunity Act 1995 as found by the Tribunal." [257] Counsel for McKenna drew attention to Watts v Rake (1960) 108 CLR 158, 160 and Purkess v Crittenden (1965) 114 CLR 164 and submitted that the case was one where the reality was that there was an onus on the appellants as the respondents below to explore the other alleged causes of McKenna's condition to fairly raise the issue for the Tribunal. As a result a debate emerged in the submissions before me as to whether the appellants as respondents below had done that. It seems to me, however, that assuming that the impact of these other matters had been squarely raised, ultimately it was a question for the Tribunal as to whether the assessment of compensation in all the circumstances involved a separate weighing of the events in her private life and other non- compensable events as causes or contributing causes of her medical condition. [258] Under the 1984 Act, compensation was dealt with in s46(2)(b) which empowered the Board to award: "Such damages as it thinks fit to compensate the last mentioned person for loss damage and injury suffered by that person in consequence of the Act of discrimination to which the complaint relates." My attention was drawn to the fact that I considered that provision in the matter of Box Hill College of Technical and Further Education and Other v Fares (unreported 28 August 1992). In that case it had been argued that the Board had failed to disentangle earlier events and their effect on Fares when assessing her compensation and had in effect applied the "egg shell skull principle" in approaching the case on the basis that the wrongdoer had to take its victim as it found its victim. In my reasons I commented (at 28): "Whatever may be the rationale of that principle, I am satisfied that it is the correct approach to take to the assessment of damages under s46(2) (b) of the Act. . . . [S46(2)(b)] requires that the loss, damage and injury be a consequence of the act of discrimination. That is satisfied if it can be shown that there is a causal link between the act complained of and the loss, damage or injury suffered. The relevant provisions are dealing with personal matters where the personality of the victim and the victim's previous experiences must inevitably interact with the act of discrimination to produce the result for which compensation is sought. So long as the Board is satisfied that the act of discrimination was a cause of loss, damage and injury, the complainant is entitled to compensation for that loss, damage and injury." [259] In that judgment I commented that in "construing the provisions of the Act preference is to be given to an interpretation that promotes the purposes and objects of the legislation (s35 Interpretation of Legislation 1984)." I also referred to the statement of Mason CJ and Gaudron J (Deane J concurring in Waters and Others v Public Transport Corporation (1991) 103 ALR 513: "Construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose . . . in the present case, the statutory objects which are stated in the long title to the Act, include, among other things, 'to render unlawful certain kinds of discrimination, to promote equality of opportunity between persons of different status' (at 520)" I refer also to the objectives of the legislation stated in s3 of the 1995 Act. [260] The present Act provides in s136(a)(ii) that the Tribunal may, if it finds the complaint or any part of it proven, order "the respondent pay to the complainant . . . an amount the Tribunal thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the contravention." The same critical language has been used in the present Act. Parliament could have changed it if another meaning was required. I see no reason to depart from the views I expressed in Fares case. [261] The Tribunal had to determine whether the matters for which compensation was claimed could be said to be "suffered in consequence of the contraventions" In considering that question it was entitled to take the view that the appellants had to accept McKenna as she was when she joined the Police Force and as she was before each Page 48 of 52 State of Victoria v McKenna, [1999] VSC 310 incident which was found to be contrary to the Act. It is also artificial to require the Tribunal to separate from the compensable causal factors experiences in the private life which intermingle in the causal chain. It is inevitable that that intermingling will occur. The impact of stress at work will flow through to have an impact on the person's private life which in turn will create stresses which will impact upon the person's reaction to the work environment and general health and happiness. The test for the Tribunal ultimately is whether the condition for which compensation is sought is shown to the Tribunal to be "suffered in consequence" of the unlawful conduct. That means that there may be occasions when events in the private life of the complainant may be of such an order that the Tribunal cannot be satisfied that the condition complained of was "suffered in consequence" of the unlawful conduct. It seems to me, however, that that expression provides the test by which to determine the question. [262] Assuming that to be the correct approach there is nothing to suggest the Tribunal in the present case incorrectly approached the matter. In particular, it was plainly open to the Tribunal to take the view that it was inappropriate to isolate what might be called the private factors from the professional factors because of the profound impact the latter had had upon her condition. [263] Two other questions of law were alleged to arise in this area (Questions 52 and 53) but have not been pressed. I treat them as abandoned. For the foregoing reasons, the appellants' challenge to the award of compensation fails. The cross appeal by McKenna as to costs [264] By its order made on 1 June 1998, the Tribunal declined to make an order as to costs. McKenna did not at any time expressly apply for costs in the proceedings. The particulars of complaint did not expressly seek costs although, in paraE of the "Statement of Relief Claimed", she sought "any further order that the Tribunal considers appropriate". At the conclusion of the hearing no express request was made by counsel for McKenna to reserve the question of costs. [265] Following receipt of the reasons and order, the solicitors for McKenna wrote to the Registrar of the Anti- Discrimination Tribunal on 11 June 1998 drawing attention to the order that there be no order as to costs. The letter went on: "The members of the Tribunal will be aware that neither party made submissions during the hearing as to costs. The decision not to make submissions on costs during the hearing, at least on the complainants part was made on the basis that it was more appropriate to await the Tribunal substantive decision before making an application of this kind. Now that the Tribunal's reasons are available, we are instructed to make application for costs. Subject to the Tribunal's direction, we wish to put submissions in support of the application." In a letter dated 16 June 1998, the Registrar wrote to the solicitors for McKenna in the following terms: ". . . the Tribunal that heard this matter has requested that I reply to your letter. The Tribunal has indicated that the matter of costs was not raised during the hearing or in submissions and was not specifically mentioned in the particulars of complaint. The Tribunal has also indicated that it made no order for costs after considering whether costs should be awarded, on the basis that the prayer for relief and the particulars of complaint requested any further order that the Tribunal considers appropriate. Given that this is the Tribunal's final order, the Tribunal will not allow the matter to be reopened unless the complainant can point to a statutory power to permit this and can show exceptional circumstances to permit this." By letter dated 29 June 1998 the solicitors for McKenna advised the Registrar of an intention to appeal by a cross appeal in the matter. [266] Counsel for McKenna submitted that the power to order costs is to be found in s138. It provides: "138. Order for costs (1) The Tribunal may order the payment of costs fixed by the Tribunal in any proceedings before the Tribunal. (2) In making an order for costs, the Tribunal, unless there are special circumstances, must fix the sum that reflects - (a) the costs reasonably incurred by the person in whose favour the order for costs is made; and Page 49 of 52 State of Victoria v McKenna, [1999] VSC 310 (b) any other pecuniary loss incurred by that person because of the proceedings. . . ." Counsel submitted that the discretion to order costs is to be found in s138 (1) and that subs(2) deals with the content of the order when made. Counsel next drew attention to s147(1) of the Act which provides: "147. Tribunal must give notice of proceedings and allow witnesses (1) The Tribunal must give a party to proceedings before it - (a) . . . (b) a reasonable opportunity to (i) . . . (iii) make submissions to the Tribunal." Counsel submitted that the Tribunal was bound by the Act, whatever, common law obligations arose, to afford McKenna procedural fairness and a reasonable opportunity to make submissions on matters in the proceedings. Counsel submitted that that obligation extended to questions of cost. It was further submitted that the order was made without giving McKenna or the present appellants any reasonable opportunity to make submissions and accordingly erred in law. [267] Turning to the communication with the Tribunal and, in particular, the reasons advanced on 16 June 1998 referred to above, two points emerged. The first was that the Tribunal viewed its order as a final order that could not be reopened. Further, it purported to exercise its discretion. Counsel submitted, however, that it erred in law in doing so in that it proceeded on the basis that the decision could not be reopened and it had failed to accord natural justice to the parties. The alternative was put that, assuming there were no reasons, the decisions were so unreasonable and so unjust that it may be inferred that there had been a failure to properly exercise the discretion, (House v R (1936) 55 CLR 499) for, in this instance, it was said that McKenna had succeeded in her complaint and prima facie should have been awarded costs. In the alternative, it was put that the Tribunal failed to exercise its discretion in relation to costs at all in that the order expressed a refusal to deal with the question. In my view this argument cannot be made out. The order merely indicates the decision and indicates that the Tribunal had considered the question. In the further alternative, it was put that assuming the Tribunal did embark on a consideration of the question, the failure to afford McKenna procedural fairness resulted in the constructive failure on the part of the Tribunal to exercise its discretion. On this issue McKenna's counsel relied upon R v The War Pensions Entitlement Appeal; ex parte Bott (1933) 50 CLR 228. [268] McKenna sought an order that the order be quashed and that this court substitute an order that the respondents to the proceeding before the Tribunal should pay McKenna's costs of those proceedings on Scale D of the County Court Scale of Costs. [269] In response, the respondents to the cross-appeal, State of Victoria and others, argued that because McKenna did not apply for costs in the proceedings below, there could be no breach of the rules of natural justice if the Tribunal dealt with the matter without inviting submissions. They further submitted that the issue of costs was discussed at various times during the hearing and in the course of those discussions counsel representing McKenna would have given the Tribunal the impression that McKenna was assuming that no order for costs would be made if she was successful. Reference was made to the transcript where the question of the ruling on the hospital records was discussed and the possibility of the case having to be reopened. Counsel for McKenna expressed concern because the Tribunal was a no cost jurisdiction - "This is a no cost jurisdiction as the Tribunal understands, effectively it is a no cost jurisdiction, . . ." On that basis counsel sought a ruling on that day or the next. Later in the day, the issue again arose and counsel spoke of the problems for McKenna in having to have doctors recalled in the event the hospital records were made available and that she would be faced with additional costs of legal representation and the not insubstantial costs of securing the people to attend. Counsel said that they were talking of many hundreds of dollars and perhaps even thousands of dollars. Again it was said: "And as I said in relation to the other matter this morning this is a no cost Tribunal." The issue for the Tribunal on that occasion was the late calling of Dr Klepfitzs. In meeting this argument counsel for the State of Victoria and the other respondents challenged the view expressed by counsel for McKenna saying Page 50 of 52 State of Victoria v McKenna, [1999] VSC 310 "as far as we are aware this is not a no - cost Tribunal and I don't know where my friend gets that from but as we understand it the Tribunal does have the power to award costs and that appears in s138 of the Act. . . ." In a response to that, Counsel for McKenna stated: "My friend questioned the assertion that I made that this is a no cost jurisdiction. Of course, what I was referring to was the fact that as a matter of practice, the Tribunal, although it has power under the Act to do it, in past decisions has demonstrated a reluctance to award costs except in exceptional circumstances. If we have to reopen the case to bring out witnesses back again then we would submit that that would be an exceptional circumstance where an order for costs in relation to that re-opening would be appropriate. . . ." In resolving the dispute one of the Tribunal members stated (at 1290) "and likewise, Mr Borenstein's client will have liberty to apply in relation to recalling witnesses as a result of that evidence and then we can argue it out then, including the question of costs. . . ." The argument in relation to the cost of the recall of the witnesses did not take place. [270] Counsel for the respondents to the cross-appeal submitted that in the absence of any further explanation McKenna chose not to apply for costs because of advice she had received that such an application would most likely be unsuccessful. I accept the argument of counsel for McKenna that there is no basis for such a conclusion. The argument, however, raises another issue and that is what was the perception of the Tribunal. The Tribunal may well have been uncertain whether McKenna would apply for costs but would not have been left under the impression that an application for costs was not going to be made by McKenna. It also could not make that assumption about the respondents to the cross-appeal they having been successful in a number of the claims. Counsel for them submitted that McKenna did not seek to reserve her position on the question of costs. This is true but that should not be necessary. They also submitted that McKenna did not ask for the matter to be relisted. This proposition I had difficulty understanding because that was precisely what the solicitor for McKenna did in the correspondence and there was not an opportunity prior to advice as to the outcome of the case to have the matter relisted for that purpose. It was further argued that there was no rule of law or procedure that required the Tribunal to contact the parties after deciding the substantive aspects of the case. It was further argued that it was under no obligation to do so certainly where a successful party had omitted to apply for costs and now wish to do so. Counsel further submitted that the better view of the matter was that the tribunal was functus officio. [271] Counsel for McKenna relied on two authorities. On the question of whether the Tribunal was functus officio, I was referred to the discussion in Taylor v Taylor (1978-79) 143 CLR 1. In that case, orders had been made in which the husband was ordered to transfer his interests in the matrimonial home to his wife. Through no fault of his own he was not present at the hearing of the petition. On learning of the decree and order he applied to the Family Court for a variation of the Order. This was made in the absence of the wife who was not present through no fault of her own. She appealed to the Full Court of the Family Court which held that the Judge of the Family Court had no power to make the variation order. Gibbs J at p4 described the issue in these terms: "There is no doubt that the appellant was not given an opportunity to be heard before the order which seriously affected him and his property was made by Woodward J (In the Supreme Court). It was not due to any fault on the part of the respondent, or of course on the part of the Judge, but nonetheless . . . common justice demands that the appellant should be allowed to present his case. The question is whether the Family Court is so shackled by the statutory provisions that govern its operations that it had no power to enable justice to be done in the circumstances." His Honour noted that there was no provision in the Family Law Act or the Regulations made under it which empowered the Family Court to set aside an order of the kind now in question other than that in sections which dealt with fraud and duress and the like. His Honour then considered the question of whether there was inherent power to set aside an order made against a party who had no opportunity to appear and present his case. In discussing the concept of "inherent jurisdiction" and the authorities relevant to that issue his Honour made the point that the inherent power or inherent jurisdiction is not conferred by the Family Law Act but may be limited by such legislation. His Honour quoted with approval the passage from the judgment of Rich J in Cameron v Cole (1944) 68 CLR 571 at 589 where Rich J referred to the fundamental principle "that a person against whom a claim is made must be given a reasonable opportunity of appearing and presenting his case." He then quoted the following passage: Page 51 of 52 State of Victoria v McKenna, [1999] VSC 310 "If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe that principle has inherent jurisdiction to set its determination aside . . in such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial. . . " Gibbs J then noted: "He added, that 'in the absence of clear words, a statute should not be treated as to deprive the court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principle of natural justice." (at 7) Stephen J delivered a brief judgment in which he concurred with Gibbs J. Counsel also referred to a decision of Von Doussa J in Telescourt v Commonwealth (1991) 29 FCR 227 which dealt directly with the failure to apply for costs. The Administrative Appeals Tribunal in that case had held that the applicant was entitled to Commonwealth compensation for his medical costs and expenses resulting from a hernia but declined to award weekly payments for working incapacities. When the decision was delivered his solicitor did not attend to seek an order for costs. The power to award costs was contained in s67(8) of the Commonwealth Employees Rehabilitation Compensation Act which provided as follows: "(8) Where any proceedings, the Administrative Appeals Tribunal makes a decision: (a) varying a reviewable decision in the manner favourable to the claimant; or . . . (b) . . . the tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the determining authority." [272] Von Doussa J noted that when the decision was handed down no one appeared before the Tribunal on behalf of the applicant and no order was sought and none was made. The hearing was not adjourned to enable such an application to be made. The solicitors for the applicant applied to have the matter relisted but the Tribunal refused to do so saying the matter was concluded. When the decision was handed down by the Tribunal, it seems that the presiding member: ". . . expressed criticism of the solicitors for the applicant for not being present and commented that too frequently solicitors did not attend to take decisions. This caused inconvenience and delay. Costs should be applied for when the decision was handed down, and the Tribunal would not make an order for costs in favour of the successful party if no application were made at that time." His Honour expressed understanding as to the concern of the presiding member about inconvenience and delay by non-attendance and that neglectful or wilful non-attendance was most discourteous. He went on to say, "But it is an extreme step to deny a successful party the costs of the action in consequence. Even where the failure of the legal practitioner to attend is without reasonable excuse that failure can appropriately be dealt with by a special order as to the cost of the hearing made necessary by the non-attendance. However, before any action is taken by the Tribunal which would have the effect of penalising a party or the party's legal practitioner in this way it is important that the Tribunal ascertain that there is no reasonable excuse for the non attendance. This may require the Tribunal to reassemble on another occasion, if and when an application for costs is made." (at 237) His Honour in fact found there was a reasonable excuse but commented that even if there was not: "No reasonable exercise of a discretion as to costs could justify depriving a successful party to whom no immediate notice of the impending decision had been given - of the costs to which he would be entitled as a matter of course. It would be most unjust to visit the single error of the solicitor for a party on the party itself in this way." [273] On the question whether the Tribunal was functus officio on the question of costs he stated that he did not consider that this was so once it had handed down its decision. He stated: Page 52 of 52 State of Victoria v McKenna, [1999] VSC 310 "S67(a) stands as a discrete head of power. It empowers the Tribunal to award costs where it makes a decision coming within the terms of the sub-section. The subsection contemplates that the decision will be given before the occasion to exercise the power arises. The power can only be exercised after a decision has been made which varies or sets aside a reviewable decision. Until the power is exercised the functions of the Tribunal are not complete." His view was that, however inconvenient it might be, the Tribunal was required to reconvene to consider an applications for costs on the request of the applicant. [274] The provisions in the Equal Opportunity Act 1995 did not mirror those considered by Von Doussa J in that they do not expressly refer to the discretion to order costs arising on the making of a decision. Nonetheless, that must be the reality of the discretion conferred by the Equal Opportunity Act 1995. There could be no basis for ordering costs of the proceedings until the decision has been made as to the outcome of the proceedings. In this instance, the decision and reasons were sent to the parties and there was no physical opportunity to seek a hearing on the question of costs before the orders were made. [275] The Tribunal in making the order may on the face of it be said to have completed its task but the question arises as to whether the making of that order was made in denial of natural justice and therefore should be set aside. In my view it was so made. It was open to the Tribunal to foreshadow to the parties that it would make such an order unless it heard to the contrary from the parties. This would have meet any need for administrative convenience. It did not, however, have any basis for concluding that any of the parties would not wish to make a costs application. [276] For these reasons, the cross-appeal should succeed. Order [277] I will hear argument from the parties as to what orders should be made in the appeal and cross-appeal in light of the foregoing reasons. Counsel for the appellant: Dr C N Jessup QC with Mrs J McLean Solicitors for the appellant: Victorian Government Counsel for the respondent: Mr H Borenstein with Dr K Hanscombe Solicitors for the respondent: Holding Redlich End of Document